[Federal Register Volume 84, Number 31 (Thursday, February 14, 2019)]
[Proposed Rules]
[Pages 4154-4220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00791]



[[Page 4153]]

Vol. 84

Thursday,

No. 31

February 14, 2019

Part II





Department of Defense





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Department of the Army, Corps of Engineers





Environmental Protection Agency





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33 CFR Part 328

40 CFR Parts 110, 112, 116, et al.





Revised Definition of ``Waters of the United States''; Proposed Rules

Federal Register / Vol. 84 , No. 31 / Thursday, February 14, 2019 / 
Proposed Rules

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 328

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401

[EPA-HQ-OW-2018-0149; FRL-9988-15-OW]
RIN 2040-AF75


Revised Definition of ``Waters of the United States''

AGENCY: Department of the Army, Corps of Engineers, Department of 
Defense; and Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency and the Department of the 
Army (``the agencies'') are publishing for public comment a proposed 
rule defining the scope of waters federally regulated under the Clean 
Water Act (CWA). This proposal is the second step in a comprehensive, 
two-step process intended to review and revise the definition of 
``waters of the United States'' consistent with the Executive Order 
signed on February 28, 2017, ``Restoring the Rule of Law, Federalism, 
and Economic Growth by Reviewing the `Waters of the United States' 
Rule.'' This proposed rule is intended to increase CWA program 
predictability and consistency by increasing clarity as to the scope of 
``waters of the United States'' federally regulated under the Act. This 
proposed definition revision is also intended to clearly implement the 
overall objective of the CWA to restore and maintain the quality of the 
nation's waters while respecting State and tribal authority over their 
own land and water resources.

DATES: Comments must be received on or before April 15, 2019.

ADDRESSES: You may submit comments, identified by Docket ID No. EPA-HQ-
OW-2018-0149, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Email: OW-Docket@epa.gov. Include Docket ID No. EPA-HQ-OW-
2018-0149 in the subject line of the message.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Office of Water Docket, Mail Code 28221T, 1200 Pennsylvania 
Avenue NW, Washington, DC 20460.
     Hand Delivery/Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., 
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``How should I submit 
comments?'' heading of the GENERAL INFORMATION section of this 
document.

FOR FURTHER INFORMATION CONTACT: Michael McDavit, Oceans, Wetlands, and 
Communities Division, Office of Water (4504-T), Environmental 
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; 
telephone number: (202) 566-2428; email address: CWAwotus@epa.gov; or 
Jennifer A. Moyer, Regulatory Community of Practice (CECW-CO-R), U.S. 
Army Corps of Engineers, 441 G Street NW, Washington, DC 20314; 
telephone number: (202) 761-5903; email address: 
USACE_CWA_Rule@usace.army.mil.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
    A. How can I get copies of this document and related 
information?
    B. Under what legal authority is this proposed rule issued?
    C. How should I submit comments?
II. Background
    A. Executive Summary
    B. The Clean Water Act and Regulatory Definition of ``Waters of 
the United States''
    1. The Clean Water Act
    2. Regulatory History
    3. Supreme Court Decisions
    4. The 2015 Rule
    C. Executive Order 13778, the ``Step One'' Notice of Proposed 
Rulemaking, and the Applicability Date Rule
    D. Summary of Stakeholder Outreach
    E. Overview of Legal Construct for the Proposed Rule
    1. Statutory Framework
    2. Supreme Court Precedent
    3. Guiding Legal Principles for Proposed Rule
III. Proposed Definition of ``Waters of the United States''
    A. Traditional Navigable Waters and Territorial Seas
    B. Interstate Waters
    C. Impoundments
    D. Tributaries
    E. Ditches
    F. Lakes and Ponds
    G. Wetlands
    H. Waters and Features That Are Not Waters of the United States
    I. Summary of Proposed Rule as Compared to the 1986 and 2015 
Regulations
    J. Placement of the Definition of Waters of the United States in 
the Code of Federal Regulations
IV. State, Tribal and Federal Agency Datasets of ``Waters of the 
United States''
V. Overview of Supporting Analyses
VI. Statutory and Executive Order Reviews
    A. Executive Order 13771: Reducing Regulation and Controlling 
Regulatory Costs
    B. Executive Order 12866: Regulatory Planning and Review; 
Executive Order 13563: Improving Regulation and Regulatory Review
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act
    E. Unfunded Mandates Reform Act
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

A. How can I get copies of this document and related information?

    1. Docket. An official public docket for this action has been 
established under Docket ID No. EPA-HQ-OW-2018-0149. The official 
public docket consists of the documents specifically referenced in this 
action, and other information related to this action. The official 
public docket is the collection of materials that is available for 
public viewing at the OW Docket, EPA West, Room 3334, 1301 Constitution 
Ave. NW, Washington, DC 20004. This Docket Facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
OW Docket telephone number is 202-566-2426. A reasonable fee will be 
charged for copies.
    2. Electronic Access. You may access this Federal Register document 
electronically under the Federal Register listings at http://www.regulations.gov. An electronic version of the public docket is 
available through EPA's electronic public docket and comment system, 
EPA Dockets. You

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may access EPA Dockets at http://www.regulations.gov to view public 
comments as they are submitted and posted, access the index listing of 
the contents of the official public docket, and access those documents 
in the public docket that are available electronically. For additional 
information about EPA's public docket, visit the EPA Docket Center 
homepage at https://www.epa.gov/dockets. Although not all docket 
materials may be available electronically, you may still access any of 
the publicly available docket materials through the Docket Facility.

B. Under what legal authority is this proposed rule issued?

    The authority for this action is the Federal Water Pollution 
Control Act, 33 U.S.C. 1251 et seq., including sections 301, 304, 311, 
401, 402, 404, and 501.

C. How should I submit comments?

    Throughout this notice, the agencies solicit comment on a number of 
issues related to the proposed rulemaking. Submit your comments, 
identified by Docket ID No. EPA-HQ-OW-2018-0149, at https://www.regulations.gov (our preferred method), or the other methods 
identified in the ADDRESSES section. Once submitted, comments cannot be 
edited or removed from the docket. The EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    This rule is the outgrowth of other rulemakings and extensive 
outreach efforts, including requests for recommendations and comments, 
and the agencies have taken recommendations and comments received into 
account in developing this proposal. In developing a final rule, the 
agencies will be considering comments submitted on this proposal. 
Persons who wish to provide views or recommendations on this proposal 
must provide comments to the agencies as part of this comment process. 
To facilitate the processing of comments, commenters are encouraged to 
organize their comments in a manner that corresponds to the outline of 
this proposal.

II. Background

A. Executive Summary

    The U.S. Environmental Protection Agency (EPA) and the U.S. 
Department of the Army (Army) (together, the agencies) are publishing 
for public comment a proposed rule defining the scope of waters subject 
to federal regulation under the Clean Water Act (CWA), in light of the 
U.S. Supreme Court cases in United States v. Riverside Bayview Homes 
(Riverside Bayview), Solid Waste Agency of Northern Cook County v. 
United States (SWANCC), and Rapanos v. United States (Rapanos), and 
consistent with Executive Order 13778, signed on February 28, 2017, 
entitled ``Restoring the Rule of Law, Federalism, and Economic Growth 
by Reviewing the `Waters of the United States' Rule.''
    The agencies propose to interpret the term ``waters of the United 
States'' to encompass: Traditional navigable waters, including the 
territorial seas; tributaries that contribute perennial or intermittent 
flow to such waters; certain ditches; certain lakes and ponds; 
impoundments of otherwise jurisdictional waters; and wetlands adjacent 
to other jurisdictional waters.
    The agencies propose as a baseline concept that ``waters of the 
United States'' are waters within the ordinary meaning of the term, 
such as oceans, rivers, streams, lakes, ponds, and wetlands, and that 
not all waters are ``waters of the United States.'' Under this proposed 
rule, a tributary is defined as a river, stream, or similar naturally 
occurring surface water channel that contributes perennial or 
intermittent flow to a traditional navigable water or territorial sea 
in a typical year either directly or indirectly through other 
tributaries, jurisdictional ditches, jurisdictional lakes and ponds, 
jurisdictional impoundments, and adjacent wetlands or through water 
features identified in paragraph (b) of this proposal so long as those 
water features convey perennial or intermittent flow downstream. A 
tributary does not lose its status if it flows through a culvert, dam, 
or other similar artificial break or through a debris pile, boulder 
field, or similar natural break so long as the artificial or natural 
break conveys perennial or intermittent flow to a tributary or other 
jurisdictional water at the downstream end of the break. Ditches are 
generally proposed not to be ``waters of the United States'' unless 
they meet certain criteria, such as functioning as traditional 
navigable waters, if they are constructed in a tributary and also 
satisfy the conditions of the proposed ``tributary'' definition, or if 
they are constructed in an adjacent wetland and also satisfy the 
conditions of the proposed ``tributary'' definition.
    The proposal defines ``adjacent wetlands'' as wetlands that abut or 
have a direct hydrological surface connection to other ``waters of the 
United States'' in a typical year. ``Abut'' is proposed to mean when a 
wetland touches an otherwise jurisdictional water at either a point or 
side. A ``direct hydrologic surface connection'' as proposed occurs as 
a result of inundation from a jurisdictional water to a wetland or via 
perennial or intermittent flow between a wetland and jurisdictional 
water. Wetlands physically separated from other waters of the United 
States by upland or by dikes, barriers, or similar structures and also 
lacking a direct hydrologic surface connection to such waters are not 
adjacent under this proposal.
    The proposal would exclude from the definition of ``waters of the 
United States'' waters or water features not mentioned above. The 
proposed definition specifically clarifies that ``waters of the United 
States'' do not include features that flow only in response to 
precipitation; groundwater, including groundwater drained through 
subsurface drainage systems; certain ditches; prior converted cropland; 
artificially irrigated areas that would revert to upland if artificial 
irrigation ceases; certain artificial lakes and ponds constructed in 
upland; water-filled depressions created in upland incidental to mining 
or construction activity; stormwater control features excavated or 
constructed in upland to convey, treat, infiltrate, or store stormwater 
run-off; wastewater recycling structures constructed in upland; and 
waste treatment systems. In addition, the agencies are proposing to 
clarify and define the terms ``prior converted cropland'' and ``waste 
treatment system'' to improve regulatory predictability and clarity.
    In response to the interest expressed by some States in 
participating in the federal jurisdictional determination process, the 
agencies are soliciting comment as to how they could establish an 
approach to authorize States, Tribes, and Federal agencies to establish

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geospatial datasets of ``waters of the United States,'' as well as 
waters that the agencies propose to exclude, within their respective 
borders for approval by the agencies. Under a separate action, the 
agencies may propose creating a framework under which States, Tribes, 
and Federal agencies could choose to develop datasets for approval for 
all, some, or none of the ``waters of the United States'' within their 
boundaries. If the agencies were to pursue such an action, they would 
do so in coordination with other Federal agencies, State, tribal, and 
interested stakeholders. This approach would not require State and 
tribal governments to establish these datasets; it would simply make 
this process available to those government agencies that would find it 
useful.
    The fundamental basis used by the agencies for the revised 
definition proposed today is the text and structure of the CWA, as 
informed by its legislative history and Supreme Court precedent, taking 
into account agency policy choices and other relevant factors. This 
proposed definition revision is intended to strike a balance between 
Federal and State waters and would carry out Congress' overall 
objective to restore and maintain the integrity of the nation's waters 
in a manner that preserves the traditional sovereignty of States over 
their own land and water resources. The agencies believe the proposed 
definition would also ensure clarity and predictability for Federal 
agencies, States, Tribes, the regulated community, and the public. This 
proposed rule is intended to ensure that the agencies are operating 
within the scope of the Federal government's authority over navigable 
waters under the CWA and the Commerce Clause of the U.S. Constitution.

B. The Clean Water Act and Regulatory Definition of ``Waters of the 
United States''

1. The Clean Water Act
    Congress amended the Federal Water Pollution Control Act (FWPCA), 
or Clean Water Act (CWA) as it is commonly called,\1\ in 1972 to 
address longstanding concerns regarding the quality of the nation's 
waters and the federal government's ability to address those concerns 
under existing law. Prior to 1972, the ability to control and redress 
water pollution in the nation's waters largely fell to the U.S. Army 
Corps of Engineers (Corps) under the Rivers and Harbors Act of 1899 
(RHA). While much of that statute focused on restricting obstructions 
to navigation on the nation's major waterways, section 13 of the RHA 
made it unlawful to discharge refuse ``into any navigable water of the 
United States,\2\ or into any tributary of any navigable water from 
which the same shall float or be washed into such navigable water.'' 33 
U.S.C. 407. Congress had also enacted the Water Pollution Control Act 
of 1948, Public Law 80-845, 62 Stat. 1155 (June 30, 1948), to address 
interstate water pollution, and subsequently amended that statute in 
1956 (giving the statute its current formal name), 1961, and 1965. The 
early versions of the CWA promoted the development of pollution 
abatement programs, required States to develop water quality standards, 
and authorized the Federal government to bring enforcement actions to 
abate water pollution.
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    \1\ The FWCPA is commonly referred to as the CWA following the 
1977 amendments to the FWPCA. Public Law 95-217, 91 Stat. 1566 
(1977). For ease of reference, the agencies will generally refer to 
the FWPCA in this notice as the CWA or the Act.
    \2\ The term ``navigable water of the United States'' is a term 
of art used to refer to waters subject to federal jurisdiction under 
the RHA. See, e.g., 33 CFR 329.1. The term is not synonymous with 
the phrase ``waters of the United States'' under the CWA, see id., 
and the general term ``navigable waters'' has different meanings 
depending on the context of the statute in which it is used. See, 
e.g., PPL Montana, LLC v. Montana, 132 S. Ct. 1215, 1228 (2012).
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    These early statutory efforts, however, proved inadequate to 
address the decline in the quality of the nation's waters, see City of 
Milwaukee v. Illinois, 451 U.S. 304, 310 (1981), so Congress performed 
a ``total restructuring'' and ``complete rewriting'' of the existing 
statutory framework in 1972, id. at 317 (quoting legislative history of 
1972 amendments). That restructuring resulted in the enactment of a 
comprehensive scheme (including voluntary as well as regulatory 
programs) designed to prevent, reduce, and eliminate pollution in the 
nation's waters generally, and to regulate the discharge of pollutants 
into navigable waters specifically. See, e.g., S.D. Warren Co. v. Maine 
Bd. of Environmental Protection, 547 U.S. 370, 385 (2006) (noting that 
``the Act does not stop at controlling the `addition of pollutants,' 
but deals with `pollution' generally'').
    The objective of the new statutory scheme was ``to restore and 
maintain the chemical, physical, and biological integrity of the 
Nation's waters.'' 33 U.S.C. 1251(a). In order to meet that objective, 
Congress declared two national goals: (1) ``that the discharge of 
pollutants into the navigable waters be eliminated by 1985;'' and (2) 
``that wherever attainable, an interim goal of water quality which 
provides for the protection and propagation of fish, shellfish, and 
wildlife and provides for recreation in and on the water be achieved by 
July 1, 1983 . . . .'' Id. at 1251(a)(1)-(2).
    Congress also established several key policies that direct the work 
of the agencies to effectuate those goals. For example, Congress 
declared as a national policy ``that the discharge of toxic pollutants 
in toxic amounts be prohibited; . . . . that Federal financial 
assistance be provided to construct publicly owned waste treatment 
works; . . . . that areawide waste treatment management planning 
processes be developed and implemented to assure adequate control of 
sources of pollutants in each State; . . . [and] that programs for the 
control of nonpoint sources of pollution be developed and implemented 
in an expeditious manner so as to enable the goals of this Act to be 
met through the control of both point and nonpoint sources of 
pollution.'' Id. at 1251(a)(3)-(7).
    Congress provided a major role for the States in implementing the 
CWA, balancing the traditional power of States to regulate land and 
water resources within their borders with the need for a national water 
quality regulation. For example, the statute highlighted ``the policy 
of the Congress to recognize, preserve, and protect the primary 
responsibilities and rights of States to prevent, reduce and eliminate 
pollution'' and ``to plan the development and use . . . . of land and 
water resources . . . . .'' Id. at 1251(b). Congress also declared as a 
national policy that States manage the major construction grant program 
and implement the core permitting programs authorized by the statute, 
among other responsibilities. Id. Congress added that ``[e]xcept as 
expressly provided in this Act, nothing in this Act shall . . . . be 
construed as impairing or in any manner affecting any right or 
jurisdiction of the States with respect to the waters (including 
boundary waters) of such States.'' Id. at 1370.\3\ Congress pledged to 
provide technical support and financial aid to the States ``in 
connection with the prevention, reduction, and elimination of 
pollution.'' Id. at 1251(b).
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    \3\ 33 U.S.C. 1370 also prohibits authorized States from 
adopting any limitations, prohibitions, or standards that are less 
stringent than required by the CWA.
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    To carry out these policies, Congress broadly defined ``pollution'' 
to mean ``the man-made or man-induced alteration of the chemical, 
physical, biological, and radiological integrity of

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water,'' id. at 1362(19), to parallel the broad objective of the Act 
``to restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters.'' Id. at 1251(a). Congress then 
crafted a non-regulatory statutory framework to provide technical and 
financial assistance to the States to prevent, reduce, and eliminate 
pollution in the nation's waters generally. For example, section 105 of 
the Act, ``Grants for research and development,'' authorized EPA ``to 
make grants to any State, municipality, or intermunicipal or interstate 
agency for the purpose of assisting in the development of any project 
which will demonstrate a new or improved method of preventing, 
reducing, and eliminating the discharge into any waters of pollutants 
from sewers which carry storm water or both storm water and 
pollutants.'' 33 U.S.C. 1255(a)(1) (emphasis added). Section 105 also 
authorized EPA ``to make grants to any State or States or interstate 
agency to demonstrate, in river basins or portions thereof, advanced 
treatment and environmental enhancement techniques to control pollution 
from all sources . . . . including nonpoint sources, . . . . [and] . . 
. . to carry out the purposes of section 301 of this Act . . . . for 
research and demonstration projects for prevention of pollution of any 
waters by industry including, but not limited to, the prevention, 
reduction, and elimination of the discharge of pollutants.'' 33 U.S.C. 
1255(b)-(c) (emphasis added); see also id. at 1256(a) (authorizing EPA 
to issue ``grants to States and to interstate agencies to assist them 
in administering programs for the prevention, reduction, and 
elimination of pollution''). Section 108, ``Pollution Control in Great 
Lakes,'' authorized EPA to enter into agreements with any State to 
develop plans for the ``elimination or control of pollution, within all 
or any part of the watersheds of the Great Lakes.'' Id. at 1258(a) 
(emphasis added); see also id. at 1268(a)(3)(C) (defining the ``Great 
Lakes System'' as ``all the streams, rivers, lakes and other bodies of 
water within the drainage basin of the Great Lakes'') (emphasis added). 
Similar broad pollution control programs were created for other major 
watersheds, including, for example, the Chesapeake Bay, see id. at 
1267(a)(3), Long Island Sound, see id. at 1269(c)(2)(D), and Lake 
Champlain, see id. at 1270(g)(2).
    In addition to the Act's non-regulatory measures to control 
pollution of the nation's waters generally, Congress created a federal 
regulatory permitting program designed to address the discharge of 
pollutants into a subset of those waters identified as ``navigable 
waters'' or ``the waters of the United States,'' id. at 1362(7). 
Section 301 contains the key regulatory mechanism: ``Except as in 
compliance with this section and sections 302, 306, 307, 318, 402, and 
404 of this Act, the discharge of any pollutant by any person shall be 
unlawful.'' Id. at 1311(a). A ``discharge of a pollutant'' is defined 
to include ``any addition of any pollutant to navigable waters from any 
point source,'' such as a pipe, ditch or other ``discernible, confined 
and discrete conveyance.'' Id. at 1362(12), (14). The term 
``pollutant'' means ``dredged spoil, solid waste, incinerator residue, 
sewage, garbage, sewage sludge, munitions, chemical wastes, biological 
materials, radioactive materials, heat, wrecked or discarded equipment, 
rock, sand, cellar dirt and industrial, municipal, and agricultural 
waste discharged into water.'' Id. at 1362(6). Thus, it is unlawful to 
discharge pollutants into the waters of the United States from a point 
source unless the discharge is in compliance with certain enumerated 
sections of the CWA, including obtaining authorization pursuant to the 
section 402 National Pollutant Discharge Elimination System (NPDES) 
permit program or the section 404 dredged or fill material permit 
program. See id. at 1342 and 1344. Congress therefore hoped to achieve 
the Act's objective ``to restore and maintain the chemical, physical, 
and biological integrity of the Nation's waters'' by addressing 
pollution of all waters via non-regulatory means and federally 
regulating the discharge of pollutants to the subset of waters 
identified as ``navigable waters.'' \4\
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    \4\ Members of Congress were aware when they drafted the 1972 
CWA amendments that different types of the Nation's waters would be 
subject to different degrees of federal control. For instance, in 
House Debate regarding a proposed and ultimately failed amendment to 
prohibit the discharge of pollutants to ground waters in addition to 
navigable waters, Representative Don H. Clausen stated, ``Mr. 
Chairman, in the early deliberations within the committee which 
resulted in the introduction of H.R. 11896, a provision for ground 
waters . . . . was thoroughly reviewed and it was determined by the 
committee that there was not sufficient information on ground waters 
to justify the types of controls that are required for navigable 
waters. I refer the gentleman to the objectives of this act as 
stated in section 101(a). The objective of this act is to restore 
and maintain the chemical, physical, and biological integrity of the 
Nation's waters. I call your attention to the fact that this does 
not say the Nation's `navigable waters,' `interstate waters,' or 
`intrastate waters.' It just says `waters.' This includes ground 
waters.'' 118 Cong. Rec. at 10,667 (daily ed. March 28, 1972).
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    Under this statutory scheme, the States are primarily responsible 
for developing water quality standards for ``waters of the United 
States'' within their borders and reporting on the condition of those 
waters to EPA every two years. Id. at 1313, 1315. States must develop 
total maximum daily loads (TMDLs) for waters that are not meeting 
established water quality standards and must submit those TMDLs to EPA 
for approval. Id. at 1313(d). States also have authority to issue water 
quality certifications or waive certification for every federal permit 
or license issued within their borders that may result in a discharge 
to navigable waters. Id. at 1341.
    These same regulatory authorities can be assumed by Indian tribes 
under section 518 of the CWA, which authorizes EPA to treat eligible 
Indian tribes with reservations in a manner similar to States for a 
variety of purposes, including administering each of the principal CWA 
regulatory programs. Id. at 1377(e). In addition, States and Tribes 
retain authority to protect and manage the use of those waters that are 
not navigable waters under the CWA. See, e.g., id. at 1251(b), 1251(g), 
1370, 1377(a). At this time, forty-seven states administer portions of 
the CWA section 402 permit program for those ``waters of the United 
States'' within their boundaries,\5\ and two states (Michigan and New 
Jersey) administer the section 404 permit program. At present, no 
Tribes administer the section 402 or 404 programs, although some are 
exploring the possibility. For additional information regarding State 
and tribal programs, see the Technical Support Document.
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    \5\ Three states (Massachusetts, New Hampshire, and New Mexico) 
do not currently administer any part of the CWA section 402 program.
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2. Regulatory History
    In May 1973, the EPA issued its first set of regulations to 
implement the new NPDES permit program established in the 1972 CWA 
amendments. Those regulations defined the phrase ``navigable waters'' 
as:
     All navigable waters of the United States;
     Tributaries of navigable waters of the United States;
     Interstate waters;
     Intrastate lakes, rivers, and streams which are utilized 
by interstate travelers for recreational or other purposes;
     Intrastate lakes, rivers, and streams from which fish or 
shellfish are taken and sold in interstate commerce; and
     Intrastate lakes, rivers, and streams which are utilized 
for industrial purposes by industries in interstate commerce.

38 FR 13528, 13529 (May 22, 1973) (codified at 40 CFR 125.1 (1973)).

[[Page 4158]]

    In 1974, the Corps issued its first set of regulations defining 
``waters of the United States'' for the purpose of implementing section 
404 of the CWA, as well as sections 9, 10, 11, 13, and 14 of the RHA, 
that reaffirmed the Corps' view that its dredged and fill jurisdiction 
under section 404 was the same as its traditional jurisdiction under 
the RHA. See 39 FR 12115, 12119 (Apr. 3, 1974) (codified at 33 CFR 
209.12033). Specifically, the Corps defined ``the waters of the United 
States'' as waters that ``are subject to the ebb and flow of the tide, 
and/or are presently, or have been in the past, or may be in the future 
susceptible for use for purposes of interstate or foreign commerce.'' 
39 FR 12119.
    Environmental organizations challenged the Corps' 1974 regulation 
in the District Court for the District of Columbia based on the concern 
that the Corps' definition of ``navigable waters'' did not include 
tributaries or coastal marshes above the mean high tide mark or 
wetlands above the ordinary high water mark. The District Court held 
that the term ``navigable waters'' is not limited to the traditional 
tests of navigability and ordered the Corps to revoke its definition 
and publish a new one ``clearly recognizing the full regulatory mandate 
of the Water Act.'' Natural Resources Defense Council, Inc. v. 
Callaway, 392 F. Supp. 685 (D.D.C. 1975).
    In response to this decision, the Corps issued interim regulations 
in 1975 that defined the term ``navigable waters'' to include 
periodically inundated coastal wetlands contiguous with or adjacent to 
navigable waters, periodically inundated freshwater wetlands contiguous 
with or adjacent to navigable waters, and, like EPA's 1973 regulations, 
certain intrastate waters based on non-transportation impacts on 
interstate commerce. The Corps revised the definition in 1977 to 
encompass traditional navigable waters, tributaries to navigable 
waters, interstate waters, adjacent wetlands to those categories of 
waters, and ``[a]ll other waters'' the ``degradation or destruction of 
which could affect interstate commerce.'' 42 FR 37122, 37144 (July 19, 
1977).
    The EPA and the Corps through the years have maintained separate 
regulations defining the statutory term ``waters of the United 
States,'' but the text of the regulations has been virtually identical 
starting in 1986.\6\ In 1986, for example, the Corps consolidated and 
recodified its regulations to align with clarifications EPA had 
previously promulgated. See 51 FR 41206 (Nov. 13, 1986). While the 
Corps stated in 1986 that the recodified regulation neither reduced nor 
expanded jurisdiction, its previous exclusion for ditches was moved 
from the regulatory text to the final rule preamble. Id. at 41216-17. 
And the Corps added to the preamble what later became known as the 
``Migratory Bird Rule,'' which claimed jurisdiction over any water 
which is or may be used by birds protected by migratory bird treaties 
or may be used as habitat for birds flying across state lines, and 
waters which may be used by endangered species, and waters used to 
irrigate crops sold in interstate commerce. Id. at 41217.
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    \6\ For convenience, the agencies generally refer to the Corps' 
regulations throughout this notice. EPA codification of the 
definition of ``waters of the United States'' is found at 40 CFR 
110.1, 112.2, 116.3, 117.1, 122.2, 230.3, 232.2, 300.5, 401.11, and 
Appendix E to Part 300.
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    The 1986 regulatory text identified the following as ``waters of 
the United States'':
     All traditional navigable waters,\7\ interstate waters, 
and the territorial seas;
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    \7\ ``Traditional navigable waters'' (or waters that are 
traditionally understood as navigable) refers to all waters which 
are currently used, were used in the past, or may be susceptible to 
use in interstate or foreign commerce, including all waters subject 
to the ebb and flow of the tide.
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     All impoundments of jurisdictional waters;
     All ``other waters'' such as lakes, ponds, and sloughs the 
``use, degradation or destruction of which could affect interstate or 
foreign commerce'';
     Tributaries of traditional navigable waters, interstate 
waters, the territorial seas, impoundments, or ``other waters''; and,
     Wetlands adjacent to traditional navigable waters, 
interstate waters, the territorial seas, impoundments, tributaries, or 
``other waters'' (other than waters that are themselves wetlands).

33 CFR 328.3(a)(1)-(7) (1987). The 1986 regulation also excluded 
``waste treatment systems'' from the definition of ``waters of the 
United States.'' Id. at 328.3(a)(7), (b) (1987).
    On August 25, 1993, the agencies amended the regulatory definition 
of ``waters of the United States'' to categorically exclude ``prior 
converted croplands.'' 58 FR 45008, 45031 (Aug. 25, 1993) (``1993 
Rule'') (codified at 33 CFR 328.3(b)(2) (1994)). The stated purpose of 
the amendment was to promote ``consistency among various federal 
programs affecting wetlands,'' in particular the Food Security Act 
(FSA) programs implemented by the U.S. Department of Agriculture (USDA) 
and the CWA programs implemented by the agencies. 58 FR 45033. The 
agencies did not include a definition of ``prior converted cropland'' 
in the text of the Code of Federal Regulations but noted in the 
preamble to the 1993 Rule that the term was defined at that time by the 
USDA National Food Security Act Manual (NFSAM). The agencies at that 
time also declined to establish clear rules for when the prior 
converted cropland designation is no longer applicable. In the preamble 
to the 1993 Rule, the agencies stated that ``[t]he Corps and EPA will 
use the [Natural Resources Conservation Service's] provisions on 
`abandonment,' thereby ensuring that PC cropland that is abandoned 
within the meaning of those provisions and which exhibit[s] wetlands 
characteristics will be considered wetlands subject to Section 404 
regulation.'' Id. at 45034. The agencies summarized these abandonment 
provisions by explaining that prior converted cropland which now meets 
wetland criteria is considered to be abandoned unless: At least once in 
every five years the area has been used for the production of an 
agricultural commodity, or the area has been used and will continue to 
be used for the production of an agricultural commodity in a commonly 
used rotation with aquaculture, grasses, legumes or pasture production. 
Id.
    Congress amended the wetland conservation (``Swampbuster'') 
provisions of the FSA in 1996 to state that USDA certifications of 
eligibility for program benefits (e.g., determinations by Natural 
Resources Conservation Service (NRCS) that particular areas constitute 
prior converted cropland) ``shall remain valid and in effect as long as 
the area is devoted to an agricultural use or until such time as the 
person affected by the certification requests review of the 
certification by the Secretary [of Agriculture].'' Public Law 104-127, 
322(a)(4); 16 U.S.C. 3822(a)(4). Thus, for purposes of farm program 
eligibility, the 1996 amendments designate as prior converted cropland 
those areas that may not have qualified for the CWA exclusion under the 
abandonment principles from the 1993 preamble, so long as such areas 
remain in agricultural use. The agencies did not update their prior 
converted cropland regulations for purposes of the CWA following the 
1996 Swampbuster amendments, as those regulations neither defined prior 
converted cropland nor specified when a valid prior converted cropland 
determination might cease to be valid. However, in 2005, the Army and 
USDA issued a joint Memorandum to the Field (the 2005 Memorandum) in an 
effort to again align the CWA 404 program with

[[Page 4159]]

Swampbuster.\8\ The 2005 Memorandum provided that a ``certified [prior 
converted] determination made by [USDA] remains valid as long as the 
area is devoted to an agricultural use. If the land changes to a non-
agricultural use, the [prior converted] determination is no longer 
applicable and a new wetland determination is required for CWA 
purposes.''
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    \8\ Memorandum to the Field on Guidance on Conducting Wetland 
Determinations for the Food Security Act of 1985 and Section 404 of 
the Clean Water Act, February 25, 2005, available at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/2508.
---------------------------------------------------------------------------

    The 2005 Memorandum did not clearly address the abandonment 
principle that the agencies had been implementing since the 1993 
rulemaking. The change in use policy was also never promulgated as a 
rule and was declared unlawful by one district court because it 
effectively modified the 1993 preamble language without any formal 
rulemaking process. New Hope Power Co. v. U.S. Army Corps of Eng'rs, 
746 F. Supp. 2d 1272, 1282 (S.D. Fla. 2010).
3. Supreme Court Decisions
    From the earliest rulemaking efforts following adoption of the 1972 
CWA amendments, to the agencies most recent attempt to define ``waters 
of the United States'' in 2015, the sparse statutory definition has 
spurred substantial litigation testing the meaning of the phrase. 
Hundreds of cases and dozens of courts have attempted to discern the 
intent of Congress when crafting the phrase. See, e.g., Rapanos v. 
United States, 547 U.S. 715, 739 (2006) (Scalia, J., plurality) 
(briefly summarizing case history). The federal courts have established 
different analytical frameworks to interpret the phrase, and the 
applicable test may differ from state to state. See, e.g., Memorandum 
from Dick Pedersen, President of the Environmental Council of the 
States (ECOS) of September 11, 2014 Concerning Waters of the United 
States under the Act at 2-23 (2014) (hereinafter, the ``ECOS 
Memorandum''), available at http://acoel.org/file.axd?file=2014%2f9%2fWaters+of+the+U+S+Final+9_11_14.pdf 
(summarizing case history following Rapanos).
    As part of this complex litigation history, three key U.S. Supreme 
Court decisions have interpreted the term ``waters of the United 
States'' and its implementing regulations and serve as guideposts for 
the agencies' interpretation of the phrase ``waters of the United 
States.'' In 1985, for example, the Supreme Court deferred to the 
Corps' assertion of jurisdiction over wetlands actually abutting a 
traditional navigable water in Michigan, stating that adjacent wetlands 
may be regulated as ``waters of the United States'' because they are 
``inseparably bound up'' with navigable waters and ``in the majority of 
cases'' have ``significant effects on water quality and the aquatic 
ecosystem'' in those waters. United States v. Riverside Bayview Homes, 
474 U.S. 121, 131-35 & n.9 (1985). The Court recognized that ``[i]n 
determining the limits of its power to regulate discharges under the 
Act, the Corps must necessarily choose some point at which water ends 
and land begins . . . . . Where on this continuum to find the limit of 
`waters' is far from obvious.'' Id. at 132. The Court acknowledged the 
``inherent difficulties of defining precise bounds to regulable 
waters,'' and deferred to the agencies' interpretation that the close 
ecological relationship between adjacent wetlands and traditional 
navigable waters provided a legal justification for treating wetlands 
as waters. Id. at 134. The Court also ``conclude[d] that a definition 
of `waters of the United States' encompassing all wetlands adjacent to 
other bodies of water over which the Corps has jurisdiction is a 
permissible interpretation of the Act.'' Id. at 135.
    The Supreme Court again addressed the definition of ``waters of the 
United States'' in Solid Waste Agency of Northern Cook County v. U.S. 
Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC). In SWANCC, the 
Court relied on the statute to reject a claim of federal jurisdiction 
over nonnavigable, isolated, intrastate ponds that lack a sufficient 
connection to traditional navigable waters, noting that the term 
``navigable'' must be given meaning within the context and application 
of the statute. Id. The Court held that interpreting the statute to 
extend to nonnavigable, isolated, intrastate ponds that lack a 
sufficient connection to traditional navigable waters would invoke the 
outer limits of Congress' power under the Commerce Clause. Id. at 172. 
Where an administrative interpretation of a statute presses against the 
outer limits of Congress' constitutional authority, the Court 
explained, it expects a clear statement from Congress that it intended 
that result, and even more so when the broad interpretation authorizes 
federal encroachment upon a traditional state power. Id. The CWA 
contains no such clear statement. Id. at 174.
    In January 2003, EPA and the Corps issued joint guidance 
interpreting the Supreme Court decision in SWANCC.\9\ The guidance 
indicated that SWANCC focused on nonnavigable, isolated, intrastate 
waters, and called for field staff to coordinate with their respective 
Corps or EPA Headquarters on jurisdictional determinations which 
asserted jurisdiction over such waters. The agencies at that time 
focused the application of SWANCC to its facts, and applied the 
decision as restricting the exercise of federal jurisdiction based on 
the Migratory Bird Rule.
---------------------------------------------------------------------------

    \9\ See Legal Memoranda Regarding Solid Waste Agency of Northern 
Cook County (SWANCC) v. United States (Jan. 15, 2003), available at 
https://www.epa.gov/sites/production/files/2016-04/documents/swancc_guidance_jan_03.pdf.
---------------------------------------------------------------------------

    The Court most recently interpreted the term ``waters of the United 
States'' in Rapanos v. United States, 547 U.S. 715 (2006). Rapanos 
involved two consolidated cases in which the CWA had been applied to 
wetlands located near man-made ditches that were ultimately connected 
to traditional navigable waters. All members of the Court agreed that 
the term ``waters of the United States'' encompasses some waters that 
are not navigable in the traditional sense.
    A four-Justice plurality interpreted the term ``waters of the 
United States'' to ``include[ ] only those relatively permanent, 
standing or continuously flowing bodies of water `forming geographic 
features' that are described in ordinary parlance as `streams[,] . . . 
oceans, rivers, [and] lakes,' '' Rapanos, 547 U.S. at 739 (Scalia, J., 
plurality) (quoting Webster's New International Dictionary 2882 (2d ed. 
1954)), and ``wetlands with a continuous surface connection'' to a 
relatively permanent water. Id. at 742. The plurality explained that 
``[w]etlands with only an intermittent, physically remote hydrologic 
connection to `waters of the United States' do not implicate the 
boundary-drawing problem of Riverside Bayview,'' and thus do not have 
the ``necessary connection'' to covered waters that triggers CWA 
jurisdiction. Id. at 742. The plurality also noted that its reference 
to ``relatively permanent'' waters did ``not necessarily exclude 
streams, rivers, or lakes that might dry up in extraordinary 
circumstances, such as drought,'' or ``seasonal rivers, which contain 
continuous flow during some months of the year but no flow during dry 
months . . . .'' Id. at 732 n.5 (emphasis in original).
    In a concurring opinion, Justice Kennedy took a different approach, 
concluding that ``to constitute `navigable waters' under the Act, a 
water or wetland must possess a `significant nexus' to waters that are 
or

[[Page 4160]]

were navigable in fact or that could reasonably be so made.'' Id. at 
759 (citing SWANCC, 531 U.S. at 167, 172). He stated that adjacent 
wetlands possess the requisite significant nexus if the wetlands 
``either alone or in combination with similarly situated lands in the 
region, significantly affect the chemical, physical, and biological 
integrity of other covered waters more readily understood as 
`navigable.' '' Id. at 780.
    Following Rapanos, on June 7, 2007, the agencies issued joint 
guidance entitled, ``Clean Water Act Jurisdiction Following the U.S. 
Supreme Court's Decision in Rapanos v. United States and Carabell v. 
United States,'' to address the waters at issue in that decision but 
did not change the codified definition. The guidance indicated that the 
agencies would assert jurisdiction over traditional navigable waters 
and their adjacent wetlands, relatively permanent nonnavigable 
tributaries of traditional navigable waters and wetlands that abut 
them, nonnavigable tributaries that are not relatively permanent if 
they have a significant nexus with a traditional navigable water, and 
wetlands adjacent to nonnavigable tributaries that are not relatively 
permanent if they have a significant nexus with a traditional navigable 
water. The guidance was reissued on December 2, 2008, with minor 
changes (hereinafter, the ``Rapanos Guidance'').\10\ After issuance of 
the Rapanos Guidance, Members of Congress, developers, farmers, state 
and local governments, environmental organizations, energy companies, 
and others asked the agencies to replace the guidance with a regulation 
that would provide clarity and certainty regarding the scope of the 
waters federally regulated under the CWA.
---------------------------------------------------------------------------

    \10\ See U.S. EPA and U.S. Army Corps of Engineers. Clean Water 
Act Jurisdiction Following the U.S. Supreme Court's Decision in 
Rapanos v. United States & Carabell v. United States at 1 (Dec. 2, 
2008) (``Rapanos Guidance''), available at https://www.epa.gov/sites/production/files/2016-02/documents/cwa_jurisdiction_following_rapanos120208.pdf.
---------------------------------------------------------------------------

    Since Rapanos, litigation has continued to confuse the regulatory 
landscape. See, e.g., the ECOS Memorandum at 2-23. The Supreme Court 
also has twice weighed in on topics related to the agencies' 
implementation of their authorities under the CWA to help clarify 
federal authority in this area. In each case, members of the Court 
noted the longstanding confusion regarding the scope of federal 
jurisdiction under the CWA and the importance of providing clear 
guidance to the regulated community. In 2012, for example, the Supreme 
Court unanimously rejected EPA's long-standing position that compliance 
orders issued under the CWA to force property owners to restore 
wetlands are not judicially reviewable as final agency actions. See 
Sackett v. EPA, 132 S. Ct. 1367, 1374 (2012). In a concurring opinion, 
Justice Alito referred to the jurisdictional reach of the CWA as 
``notoriously unclear'' and noted that the Court's decision provided 
only ``a modest measure of relief.'' Id. at 1375 (``For 40 years, 
Congress has done nothing to resolve this critical ambiguity, and the 
EPA has not seen fit to promulgate a rule providing a clear and 
sufficiently limited definition of the phrase'' waters of the United 
States.).
    In 2016, the Supreme Court in a unanimous opinion rejected the 
Corps' longstanding position that jurisdictional determinations issued 
by the Corps were not judicially reviewable as final agency actions. 
Writing for the Court, the Chief Justice recognized that it ``is often 
difficult to determine whether a particular piece of property contains 
waters of the United States, but there are important consequences if it 
does.'' U.S. Army Corps of Engineers v. Hawkes, 136 S. Ct. 1807, 1812 
(2016). Given those important consequences, the Court held that 
jurisdictional determinations are subject to immediate judicial review 
when made. Justice Kennedy authored a concurring opinion, ``not to 
qualify what the Court says but to point out, that based on the 
Government's representations in this case, the reach and systemic 
consequences of the Clean Water Act remain a cause for concern.'' Id. 
at 1816 (referring to the ``ominous reach'' of the Act). On remand, the 
lower court found that the Corps' assertion of jurisdiction over a peat 
farm more than 90 miles from the nearest traditional navigable water 
based on the ``significant nexus'' test described in the agencies' 
Rapanos Guidance was ``arbitrary and capricious.'' Hawkes Co. v. United 
States Army Corps of Eng'rs, No. 13-107 ADM/TNL, 2017 U.S. Dist. LEXIS 
10680 at *33 (D. Minn. Jan. 24, 2017).
4. The 2015 Rule
    On June 29, 2015, the agencies issued a final rule amending various 
portions of the Code of Federal Regulations that set forth a new 
definition of ``waters of the United States.'' 80 FR 37054 (June 29, 
2015). The 2015 Rule revised the definition of ``waters of the United 
States'' by grouping waters and features in three categories: (1) 
Waters that are jurisdictional by rule; (2) waters that will be found 
jurisdictional only upon a case-specific showing of a significant nexus 
with a primary water; \11\ and (3) waters and aquatic features that are 
expressly excluded from jurisdiction. Id. at 37057. The 2015 Rule did 
not modify the regulatory text from the 1986 regulation for traditional 
navigable waters, interstate waters, the territorial seas, or 
impoundments of jurisdictional waters. Id. at 37058.
---------------------------------------------------------------------------

    \11\ In this notice, a ``primary'' water is a category (1) 
through (3) ``jurisdictional by rule'' water according to the 2015 
Rule.
---------------------------------------------------------------------------

    As in the 1986 regulation and its predecessors, the 2015 Rule 
identified tributaries as jurisdictional. Unlike the 1986 regulation, 
the 2015 Rule defined ``tributary'' as a water that ``contributes flow, 
either directly or through another water,'' to a traditional navigable 
water, interstate water, or the territorial seas, and that has the 
``physical indicators of a bed and banks and an ordinary high water 
mark.'' Id. at 37104, 37105-6. The 2015 Rule also defined ``waters of 
the United States'' to include ``wetlands, ponds, lakes, oxbows, 
impoundments, and similar waters'' that are ``adjacent to'' a primary 
water, impoundment, or tributary. Id. at 37104. The term ``adjacent'' 
continued to be defined as in the 1986 regulation to mean ``bordering, 
contiguous, or neighboring.'' Id. at 37105. The 2015 Rule, however, 
promulgated a new definition for ``neighboring,'' interpreting that 
term to encompass all waters located within 100 feet of the ordinary 
high water mark of a category (1) through (5) ``jurisdictional by 
rule'' water; all waters located within the 100-year floodplain of a 
category (1) through (5) ``jurisdictional by rule'' water and not more 
than 1,500 feet from the ordinary high water mark of such water; all 
waters located within 1,500 feet of the high tide line of a primary 
water; and all waters within 1,500 feet of the ordinary high water mark 
of the Great Lakes. Id. at 37105. Under the 2015 Rule, the entire water 
is considered neighboring if any portion of it lies within one of these 
zones. See id.
    In addition to the six categories of ``jurisdictional by rule'' 
waters, the 2015 Rule identifies two other categories of waters that 
are subject to a case-specific analysis to determine if they have a 
``significant nexus'' to a primary water. Id. at 37104-5. The first 
category of these waters consists of five specific types of waters in 
specific regions of the country considered similarly situated: Prairie 
potholes, Carolina and Delmarva bays, pocosins, western vernal pools in 
California, and Texas coastal prairie wetlands. Id. at 37105. The 
second category consists of all waters located within the 100-year 
floodplain of any primary water and all waters located

[[Page 4161]]

within 4,000 feet of the high tide line or ordinary high water mark of 
any category (1) through (5) ``jurisdictional by rule'' water. Id.
    The 2015 Rule also changed the implementation of ``significant 
nexus'' previously adopted by the agencies in the Rapanos Guidance. The 
2015 Rule defines ``significant nexus'' to mean a water, including 
wetlands, that either alone or in combination with other similarly 
situated waters in the region, significantly affects the chemical, 
physical, or biological integrity of a primary water. 80 FR 37106. 
``For an effect to be significant, it must be more than speculative or 
insubstantial.'' Id. The term ``in the region'' means ``the watershed 
that drains to the nearest'' primary water, and waters are ``similarly 
situated'' when they function alike and are sufficiently close to 
function together in affecting downstream primary waters. Id. This 
definition is different than the test articulated by the agencies in 
their Rapanos Guidance. That guidance interpreted ``similarly 
situated'' to include all wetlands (not waters) adjacent to the same 
tributary, a less expansive treatment of similarly situated waters than 
in the 2015 Rule.
    Under the 2015 Rule, to determine whether a water, alone or in 
combination with similarly situated waters, has a significant nexus, 
one must look at nine functions, including sediment trapping, runoff 
storage, provision of life cycle dependent aquatic habitat, and others. 
It is sufficient for determining whether a water has a significant 
nexus if any single function performed by the water, alone or together 
with similarly situated waters in the watershed, contributes 
significantly to the chemical, physical, or biological integrity of the 
nearest primary water. Id. Taken together, the enumeration of the nine 
functions and the more expansive consideration of ``similarly 
situated'' in the 2015 Rule relative to the Rapanos Guidance could mean 
that the vast majority of water features in the United States not 
otherwise excluded from the 2015 Rule's definition of ``waters of the 
United States'' may come within the jurisdictional purview of the 
federal government.\12\
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    \12\ ``[T]he vast majority of the nation's water features are 
located within 4,000 feet of a covered tributary, traditional 
navigable water, interstate water, or territorial sea.'' U.S. EPA 
and Department of the Army. Economic Analysis of the EPA-Army Clean 
Water Rule at 11 (May 20, 2015) (``2015 Rule Economic Analysis'') 
(Docket ID: EPA-HQ-OW-2011-0880-20866), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20866.
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    The agencies retained exclusions from the definition of ``waters of 
the United States'' for prior converted cropland and waste treatment 
systems. Id. In addition, the agencies codified several exclusions that 
reflected longstanding agency practice. Id. For instance, certain 
ditches and artificial, constructed lakes and ponds (including small 
ornamental waters created in dry land) are excluded from jurisdiction 
under the 2015 Rule, as are groundwater and a number of other specified 
features. See 80 FR 37109. The agencies also added specific exclusions 
for ``puddles'' and ``swimming pools'' in response to concerns raised 
by many stakeholders during the public comment period on the proposed 
2015 Rule.
    Following publication of the 2015 Rule, 31 States \13\ and 53 non-
state parties, including environmental groups and groups representing 
farming, recreational, forestry, and other interests, filed complaints 
and petitions for review in multiple federal district \14\ and 
appellate \15\ courts challenging the 2015 Rule. In those cases, the 
challengers alleged numerous procedural deficiencies in the development 
and promulgation of the 2015 Rule and significant substantive 
deficiencies in the 2015 Rule itself.
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    \13\ Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, 
Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, 
Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico 
(Environment Department and State Engineer), North Carolina 
(Department of Environment and Natural Resources), North Dakota, 
Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, 
Utah, West Virginia, Wisconsin, and Wyoming. Iowa joined the 
challenge later in the process, bringing the total to 32 States.
    \14\ U.S. District Courts for the Northern and Southern District 
of Georgia, District of Minnesota, District of North Dakota, 
Southern District of Ohio, Northern District of Oklahoma, Southern 
District of Texas, District of Arizona, Northern District of 
Florida, District of the District of Columbia, Western District of 
Washington, Northern District of California, and Northern District 
of West Virginia.
    \15\ U.S. Court of Appeals for the Second, Fifth, Sixth, Eighth, 
Ninth, Tenth, Eleventh, and District of Columbia Circuits.
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    The day before the 2015 Rule's August 28, 2015 effective date, the 
U.S. District Court for the District of North Dakota preliminarily 
enjoined the 2015 Rule in the 13 States that challenged the rule in 
that court.\16\ The district court found those States were ``likely to 
succeed'' on the merits of their challenge to the 2015 Rule because, 
among other reasons, ``it appears likely that the EPA has violated its 
Congressional grant of authority in its promulgation of the Rule.'' 
North Dakota v. EPA, 127 F. Supp. 3d 1047, 1051 (D.N.D. 2015). In 
particular, the court noted concern that the 2015 Rule's definition of 
tributary ``includes vast numbers of waters that are unlikely to have a 
nexus to navigable waters.'' Id. at 1056. Further, the court found that 
``it appears likely that the EPA failed to comply with [Administrative 
Procedure Act (APA)] requirements when promulgating the Rule,'' 
suggesting that certain distance-based measures were not a logical 
outgrowth of the proposal to the 2015 Rule. Id. at 1058. No party 
sought an interlocutory appeal.
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    \16\ Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, 
Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, 
and Wyoming. The agencies note that Iowa is now also subject to the 
preliminary injunction issued by the District of North Dakota. See 
Order, North Dakota v. EPA, No. 3:15-cv-59 (D.N.D. Sept. 18, 2018).
---------------------------------------------------------------------------

    The numerous petitions for review filed in the courts of appeals 
were consolidated in the U.S. Court of Appeals for the Sixth Circuit. 
In that litigation, state and industry petitioners raised concerns 
about whether the 2015 Rule violated the Constitution and the CWA, and 
whether its promulgation violated the APA and other statutes. 
Environmental petitioners also challenged the 2015 Rule, claiming that 
the 2015 Rule was too narrow. On October 9, 2015, approximately six 
weeks after the 2015 Rule took effect in the 37 States, the District of 
Columbia, and U.S. Territories that were not subject to the preliminary 
injunction issued by the District of North Dakota, the Sixth Circuit 
stayed the 2015 Rule nationwide after finding, among other things, that 
State petitioners had demonstrated ``a substantial possibility of 
success on the merits of their claims.'' In re EPA & Dep't of Def. 
Final Rule, 803 F.3d 804 (6th Cir. 2015) (``In re EPA'').
    On January 13, 2017, the U.S. Supreme Court granted certiorari on 
the question of whether the courts of appeals have original 
jurisdiction to review challenges to the 2015 Rule. See Nat'l Ass'n of 
Mfrs. v. Dep't of Defense, 137 S. Ct. 811 (2017). The Sixth Circuit 
granted petitioners' motion to hold in abeyance the briefing schedule 
in the litigation challenging the 2015 Rule pending a Supreme Court 
decision on the question of the court of appeals' jurisdiction. On 
January 22, 2018, the Supreme Court, in a unanimous opinion, held that 
the 2015 Rule is subject to direct review in the district courts. Nat'l 
Ass'n of Mfrs. v. Dep't of Def., 138 S. Ct. 617, 624 (Jan. 22, 2018). 
Throughout the pendency of the Supreme Court litigation (and for a 
short time thereafter), the Sixth Circuit's nationwide stay remained in 
effect. In response to the Supreme Court's decision, on February 28, 
2018, the Sixth Circuit lifted the stay and dismissed the corresponding 
petitions for review. See In re Dep't of Def. & EPA Final Rule, 713 
Fed. Appx. 489 (6th Cir. 2018).

[[Page 4162]]

    Since the Supreme Court's jurisdictional ruling, district court 
litigation regarding the 2015 Rule has resumed. The 2015 Rule continues 
to be subject to a preliminary injunction issued by the District of 
North Dakota as to 14 States: Alaska, Arizona, Arkansas, Colorado, 
Idaho, Iowa, Missouri, Montana, Nebraska, Nevada, North Dakota, South 
Dakota, Wyoming, and New Mexico. The 2015 Rule also is subject to a 
preliminary injunction recently issued by the United States District 
Court for the Southern District of Georgia as to 11 more States: 
Georgia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, 
South Carolina, Utah, West Virginia, and Wisconsin. See Georgia v. 
Pruitt, No. 15-cv-79 (S.D. Ga.). When issuing the preliminary 
injunction, the Southern District of Georgia court held that the State 
plaintiffs had demonstrated ``a likelihood of success on their claims 
that the [2015] WOTUS Rule was promulgated in violation of the CWA and 
the APA.'' Georgia v. Pruitt, No. 15-cv-79, slip op. at 10 (S.D. Ga. 
June 8, 2018) (Order Granting Preliminary Injunction) (``Georgia''). In 
support of the preliminary injunction, the court stated that the 2015 
Rule failed to meet the standard expounded in SWANCC and Rapanos, and 
that the rule was fatally defective because it ``allows the Agencies to 
regulate waters that do not bear any effect on the `chemical, physical, 
and biological integrity' of any navigable-in-fact water.'' Id. at 12. 
The court also held that the plaintiffs ``have demonstrated a 
likelihood of success on both of their claims under the APA'' that the 
2015 Rule ``is arbitrary and capricious'' and ``that the final rule is 
not a logical outgrowth of the proposed rule.'' Id. at 13.
    In September 2018, the United States District Court for the 
Southern District of Texas issued a preliminary injunction against the 
2015 Rule in response to motions filed by the States of Texas, 
Louisiana, and Mississippi and several business associations, finding 
that enjoining the rule would provide ``much needed governmental, 
administrative, and economic stability'' while the rule undergoes 
judicial review. See Texas v. EPA, No. 3:15-cv-162, 2018 U.S. Dist. 
LEXIS 160443, at *4 (S.D. Tex. Sept. 12, 2018). The court observed that 
if it did not temporarily enjoin the rule, ``it risks asking the 
states, their governmental subdivisions, and their citizens to expend 
valuable resources and time operationalizing a rule that may not 
survive judicial review.'' Id. At this time, the 2015 Rule is enjoined 
in 28 States and remains in effect following the lift of the Sixth 
Circuit stay in 22 States, the District of Columbia, and U.S. 
Territories.

C. Executive Order 13778, the ``Step One'' Notice of Proposed 
Rulemaking, and the Applicability Date Rule

    On February 28, 2017, the President issued Executive Order 13778 
entitled ``Restoring the Rule of Law, Federalism, and Economic Growth 
by Reviewing the `Waters of the United States' Rule.'' Section 1 of the 
Executive Order states, ``[i]t is in the national interest to ensure 
the Nation's navigable waters are kept free from pollution, while at 
the same time promoting economic growth, minimizing regulatory 
uncertainty, and showing due regard for the roles of the Congress and 
the States under the Constitution.'' The Executive Order directs the 
EPA and the Army to review the 2015 Rule for consistency with the 
policy outlined in section 1 of the Order and to issue a proposed rule 
rescinding or revising the 2015 Rule as appropriate and consistent with 
law (Section 2). The Executive Order also directs the agencies to 
``consider interpreting the term `navigable waters' . . . in a manner 
consistent with'' Justice Scalia's plurality opinion in Rapanos v. 
United States, 547 U.S. 715 (2006) (Section 3).
    On March 6, 2017, the agencies published a notice of intent to 
review the 2015 Rule and provide notice of a forthcoming proposed 
rulemaking consistent with the Executive Order. 82 FR 12532. Shortly 
thereafter, the agencies announced that they would implement the 
Executive Order in a two-step approach. On July 27, 2017, the agencies 
issued the ``Step One'' notice of proposed rulemaking (82 FR 34899) 
that proposed to repeal the 2015 Rule and recodify the regulatory text 
that governed prior to the promulgation of the 2015 Rule, consistent 
with Supreme Court decisions and informed by applicable guidance 
documents and agency practice, and which the agencies have been 
implementing since the judicial stay of the 2015 Rule. 82 FR 34899. The 
agencies invited comment on the notice of proposed rulemaking over a 
62-day period. On July 12, 2018, the agencies published a supplemental 
notice of proposed rulemaking to clarify, supplement, and seek 
additional comment on the Step One notice of proposed rulemaking. 83 FR 
32227.
    On November 22, 2017, the agencies published and solicited public 
comment on a proposal to establish an applicability date for the 2015 
Rule that would be two years from the date of any final rule (82 FR 
55542). On February 6, 2018, the agencies issued a final rule, 83 FR 
5200 (Feb. 6, 2018), adding an applicability date to the 2015 Rule. The 
applicability date was established as February 6, 2020. When adding an 
applicability date to the 2015 Rule, the agencies clarified that they 
will continue to implement nationwide the previous regulatory 
definition of ``waters of the United States,'' consistent with the 
practice and procedures the agencies implemented long before and 
immediately following the 2015 Rule pursuant to the preliminary 
injunction issued by the District of North Dakota and the nationwide 
stay issued by the Sixth Circuit. The agencies further explained that 
the final applicability date rule would ensure regulatory certainty and 
consistent implementation of the CWA nationwide while the agencies 
reconsider the 2015 Rule and pursue further rulemaking to develop a new 
definition of ``waters of the United States.''
    The applicability date rule was challenged in a number of district 
courts by States and environmental organizations. On August 16, 2018, 
the U.S. District Court for the District of South Carolina granted 
summary judgment in favor of the plaintiffs and enjoined the 
Applicability Date Rule nationwide. South Carolina Coastal Conservation 
League, et al., v. Pruitt, No. 2-18-cv-330-DCN, 2018 U.S. Dist. LEXIS 
138595 (D.S.C. Aug. 16, 2018). In addition, on November 26, 2018, the 
U.S. District Court for the Western District of Washington vacated the 
Applicability Date Rule nationwide. Puget Soundkeeper Alliance, et al. 
v. Andrew Wheeler, et al., No. C15-1342-JCC (W.D. Wash. November 26, 
2018). As a result, the 2015 Rule is now in effect in 22 States.\17\ 
The 2015 Rule continues to be subject to preliminary injunctions issued 
by the U.S. District Court for the District of North Dakota, the U.S. 
District Court for the Southern District of Georgia, and the U.S. 
District Court for the Southern District of Texas in a total of 28 
States.
---------------------------------------------------------------------------

    \17\ To assist the public in keeping up with the changing 
regulatory landscape of federal jurisdiction under the CWA, the EPA 
has posted a map of current effective regulation by state online at 
https://www.epa.gov/wotus-rule/definition-waters-united-states-rule-status-and-litigation-update.
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D. Summary of Stakeholder Outreach

    Following the March 6, 2017 Federal Register notice announcing the 
agencies' intent to review and rescind or revise the 2015 Rule, the 
agencies initiated an effort to engage the public to hear perspectives 
as to how the agencies could define ``waters of the United States,'' 
including creating a new website to provide information on the

[[Page 4163]]

rulemaking. See www.epa.gov/wotus-rule. On April 19, 2017, the agencies 
held an initial Federalism consultation with State and local government 
officials as well as national organizations representing such 
officials. The agencies also convened several additional meetings with 
intergovernmental associations and their members to solicit input on 
the future rule. The EPA, with participation from the Army, initiated 
Tribal consultation on April 20, 2017, under the EPA Policy on 
Consultation and Coordination with Indian Tribes. See Section VI for 
further details on the agencies' Federalism and Tribal consultations.
    In addition to engaging key State, tribal and local officials 
through Federalism and Tribal consultations, the agencies sought 
feedback on the definition of ``waters of the United States'' from a 
broad audience of stakeholders, including small entities (small 
businesses, small organizations and small government jurisdictions), 
through a series of outreach webinars that were held September 9, 2017, 
through November 21, 2017, as well as an in-person meeting for small 
entities on October 23, 2017. A summary of these public meetings is 
available in the docket (Docket Id. No. EPA-HQ-OW-2018-0149) for this 
proposed rule. The webinars were tailored to specific sectors, 
including agriculture (row crop, livestock, silviculture); conservation 
(hunters and anglers); small entities (small businesses, small 
organizations, small jurisdictions); construction and transportation; 
environment and public advocacy (including health and environmental 
justice); mining; energy and chemical industry; scientific 
organizations and academia; stormwater, wastewater management, and 
drinking water agencies; and the general public.
    At the webinars and meetings, the agencies provided a presentation 
and sought input on specific issues, such as potential approaches to 
defining ``relatively permanent'' waters and ``continuous surface 
connections'' after the plurality opinion in Rapanos. The agencies did 
not provide participants with specific rule text or alternatives for 
consideration, but requested feedback on other considerations 
addressing specific geomorphological features, exclusions and 
exemptions, costs and benefits, and aquatic resource data that the 
agencies might consider in the technical analyses for a future rule. 
Participant comments and letters submitted represent a diverse range of 
interests, positions, suggestions, and recommendations provided to the 
agencies. Several themes emerged throughout this process, including 
support for ongoing State and tribal engagement; clarity and 
predictability of the regulation; specific suggestions for rule 
language; suggested exclusions and exemptions; regionalization of the 
definition; and, procedural concerns.
    As part of this outreach effort, the agencies established a public 
recommendations docket (Docket ID No. EPA-HQ-OW-2017-0480) that opened 
August 28, 2017, and closed November 28, 2017. The agencies received 
over 6,300 recommendations that have been considered as the agencies 
developed this proposed rule, which are available on Regulations.gov at 
https://www.regulations.gov/docket?D=EPA-HQ-OW-2017-0480. Another 
source of recommendations as to how the agencies should define ``waters 
of the United States'' came from public comments on the agencies' 
proposed ``Step One'' rule (82 FR 34899) and the July 2018 supplemental 
notice of proposed rulemaking (83 FR 32227). These comments also have 
been considered.
    In addition, on March 8 and 9, 2018, the agencies held an in-person 
meeting with a group of nine states (Arizona, Arkansas, Florida, Iowa, 
Maryland, Minnesota, Oregon, Pennsylvania, and Wyoming), and convened a 
subsequent in-person meeting on March 22, 2018, with representatives 
from all states at the spring meeting of the Environmental Council of 
the States. The agencies also held an in-person Tribal Co-Regulators 
Workshop on March 6 and 7, 2018. These meetings were intended to seek 
technical input on the proposed rule. A summary of these meetings is 
available in the docket (Docket Id. No. EPA-HQ-OW-2018-0149) for this 
proposed rule.

E. Overview of Legal Construct for the Proposed Rule

    As the preceding summary of the statutory and regulatory history 
makes clear, the central term delineating the federal geographic scope 
of authority under the CWA--``waters of the United States''--has been 
the subject of debate and litigation for many years. The agencies today 
are proposing to establish a regulation that would define ``waters of 
the United States'' in simple, understandable, and implementable terms 
to reflect the ordinary meaning of the statutory term, as well as to 
adhere to Constitutional and statutory limitations, the policies of the 
CWA, and case law, and to meet the needs of regulatory agencies and the 
regulated community. This subsection summarizes the legal principles 
that inform the agencies' proposal, and the following section (Section 
III) describes how the agencies are applying those legal principles to 
support the proposed ``waters of the United States'' definition.
1. Statutory Framework
    To determine the scope of executive branch authority under the CWA, 
the agencies begin with the text of the statute. The objective of the 
CWA, as established by Congress, is ``to restore and maintain the 
chemical, physical, and biological integrity of the Nation's waters.'' 
33 U.S.C. 1251(a). As discussed in Section II.B above, in order to meet 
that objective, Congress declared two national water quality goals and 
established several key policies that direct the work of the agencies. 
Congress also envisioned a major role for the States in implementing 
the CWA, carefully balancing the traditional power of States to 
regulate land and water resources within their borders with the need 
for national water quality regulation.
    The agencies have developed programs designed to ensure that the 
full statute is implemented as Congress intended. See, e.g., Hibbs v. 
Winn, 542 U.S. 88, 101 (2004) (``A statute should be construed so that 
effect is given to all its provisions, so that no part will be 
inoperative or superfluous, void or insignificant.''). This includes 
pursuing the overall ``objective'' of the CWA while implementing the 
specific ``policy'' directives from Congress to, among other things, 
``recognize, preserve, and protect the primary responsibilities and 
rights of States to prevent, reduce, and eliminate pollution'' and ``to 
plan the development and use . . . of land and water resources,'' 33 
U.S.C. 1251(b). See Webster's II, New Riverside University Dictionary 
(1994) (defining ``policy'' as a ``plan or course of action, as of a 
government[,] designed to influence and determine decisions and 
actions;'' an ``objective'' is ``something worked toward or aspired to: 
Goal'').\18\ The

[[Page 4164]]

agencies therefore recognize a distinction between the specific word 
choices of Congress, including the need to develop regulatory programs 
that aim to accomplish the goals of the Act while implementing the 
specific policy directives of Congress.\19\ To do so, the agencies must 
determine what Congress had in mind when it defined ``navigable 
waters'' in 1972 as simply ``the waters of the United States.''
---------------------------------------------------------------------------

    \18\ As Congress drafted the 1972 CWA amendments, the Senate 
bill set the ``no-discharge of pollutants into the navigable water 
by 1985'' provision as a policy whereas the House bill set it as a 
goal. The Act was ultimately passed with the ``no-discharge by 
1985'' provision established as a goal. See 33 U.S.C 1251(a)(1). In 
House consideration of the Conference Report, Congressman Jones 
captured the policy versus goal distinction in Section 101(a)(1) as 
follows: ``The objective of this legislation is to restore and 
preserve for the future the integrity of our Nation's waters. The 
bill sets forth as a national goal the complete elimination of all 
discharges into our navigable waters by 1985, but . . . the 
conference report states clearly that achieving the 1985 target date 
is a goal, not a national policy. As such, it serves as a focal 
point for long-range planning, and for research and development in 
water pollution control technology . . . . While it is our hope that 
we can succeed in eliminating all discharge into our waters by 1985, 
without unreasonable impact on the national life, we recognized in 
this report that too many imponderables exist, some still beyond our 
horizons, to prescribe this goal today as a legal requirement.'' 118 
Cong. Rec. H. 33749 (daily ed. October 4, 1972).
    \19\ See, e.g., Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 
519, 544, (2012) (``Where Congress uses certain language in one part 
of a statute and different language in another, it is generally 
presumed that Congress acts intentionally''); Russello v. United 
States, 464 U.S. 16, 23 (1983) (``[Where] Congress includes 
particular language in one section of a statute but omits it in 
another section of the same Act, it is generally presumed that 
Congress acts intentionally and purposely in the disparate inclusion 
or exclusion.'').
---------------------------------------------------------------------------

    Congress' authority to regulate navigable waters derives from its 
power to regulate the ``channels of interstate commerce'' under the 
Commerce Clause. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); see 
also United States v. Lopez, 514 U.S. 549, 558-59 (1995) (describing 
the ``channels of interstate commerce'' as one of three areas of 
congressional authority under the Commerce Clause). The Supreme Court 
explained in SWANCC that the term ``navigable'' indicates ``what 
Congress had in mind as its authority for enacting the Clean Water Act: 
its traditional jurisdiction over waters that were or had been 
navigable in fact or which could reasonably be so made.'' 531 U.S. 159, 
172 (2001). The Court further explained that nothing in the legislative 
history of the Act provides any indication that ``Congress intended to 
exert anything more than its commerce power over navigation.'' Id. at 
168 n.3. The Supreme Court, however, has recognized that Congress 
intended ``to exercise its powers under the Commerce clause to regulate 
at least some waters that would not be deemed `navigable' under the 
classical understanding of that term.'' Riverside Bayview, 474 U.S. at 
133; see also SWANCC, 531 U.S. at 167.
    The classical understanding of the term navigable was first 
articulated by the Supreme Court in The Daniel Ball:

    Those rivers must be regarded as public navigable rivers in law 
which are navigable in fact. And they are navigable in fact when 
they are used, or are susceptible of being used, in their ordinary 
condition, as highways of commerce, over which trade and travel are 
or may be conducted in the customary modes of trade and travel on 
water. And they constitute navigable waters of the United States 
within the meaning of the Acts of Congress, in contradistinction 
from the navigable waters of the States, when they form in their 
ordinary condition by themselves, or by uniting with other waters, a 
continued highway over which commerce is or may be carried on with 
other States or foreign countries in the customary modes in which 
such commerce is conducted by water.

77 U.S. (10 Wall.) 557, 563 (1871). Over the years, this traditional 
test has been expanded to include waters that had been used in the past 
for interstate commerce, see Economy Light & Power Co. v. United 
States, 256 U.S. 113, 123 (1921), and waters that are susceptible for 
use with reasonable improvement, see United States v. Appalachian Elec. 
Power Co., 311 U.S. 377, 407-10 (1940).
    By the time the 1972 CWA amendments were enacted, the Supreme Court 
had also made clear that Congress' authority over the channels of 
interstate commerce was not limited to regulation of the channels 
themselves, but could extend to non-navigable tributaries as necessary 
to protect the channels. See Oklahoma ex rel. Phillips v. Guy F. 
Atkinson Co., 313 U.S. 508, 523 (1941) (``Congress may exercise its 
control over the non-navigable stretches of a river in order to 
preserve or promote commerce on the navigable portions.''). The Supreme 
Court had also clarified that Congress could regulate waterways that 
formed a part of a channel of interstate commerce, even if they are not 
themselves navigable or do not cross state boundaries. See Utah v. 
United States, 403 U.S. 9, 11 (1971).
    These developments were discussed during the legislative process 
leading up to the passage of the 1972 CWA amendments, and certain 
members referred to the scope of the amendments as encompassing 
waterways that serve as ``links in the chain'' of interstate commerce 
as it flows through various channels of transportation, such as 
railroads and highways. See, e.g., 118 Cong. Rec. 33756-57 (1972) 
(statement of Rep. Dingell); 118 Cong. Rec. 33699 (Oct. 4, 1972) 
(statement of Sen. Muskie).\20\ Other references suggest that 
congressional committees at least contemplated applying the ``control 
requirements'' of the Act ``to the navigable waters, portions thereof, 
and their tributaries.'' S. Rep. No. 92-414, 92nd Cong. 1st Sess. at 77 
(1971). And in 1977, when Congress authorized State assumption over the 
section 404 dredged or fill material permitting program, Congress 
limited the scope of assumable waters by requiring the Corps to retain 
permitting authority over Rivers and Harbors Act waters (as identified 
by the Daniel Ball test) plus wetlands adjacent to those waters, minus 
historic use only waters. See 33 U.S.C. 1344(g)(1).\21\ This suggests 
that Congress had in mind a broader scope of waters subject to CWA 
jurisdiction than waters traditionally understood as navigable. See 
SWANCC, 531 U.S. at 171; Riverside Bayview, 474 U.S. at 138 n.11.
---------------------------------------------------------------------------

    \20\ The agencies recognize that individual member statements 
are not a substitute for full congressional intent, but they do help 
provide context for issues that were discussed during the 
legislative debates. For a detailed discussion of the legislative 
history of the 1972 CWA amendments, see, e.g., Albrecht & 
Nickelsburg, Could SWANCC Be Right? A New Look at the Legislative 
History of the Clean Water Act, 32 ELR 11042 (Sept. 2002).
    \21\ For a detailed discussion of the legislative history 
supporting the enactment of CWA section 404(g), see Final Report of 
the Assumable Waters Subcommittee (May 2017), App. F., available at 
https://www.epa.gov/sites/production/files/2017-05/documents/awsubnaceptpresent5-final.pdf.
---------------------------------------------------------------------------

    Thus, Congress intended to assert federal authority over more than 
just waters traditionally understood as navigable, and Congress rooted 
that authority in ``its commerce power over navigation.'' SWANCC, 531 
U.S. at 168 n.3. However, there must necessarily be a limit to that 
authority and to what water is subject to federal jurisdiction. How the 
agencies should exercise that authority has been the subject of dispute 
for decades, but the Supreme Court on three occasions has analyzed the 
issue and provided some instructional guidance.
2. Supreme Court Precedent
a. Adjacent Wetlands
    In Riverside Bayview, the Supreme Court considered the Corps' 
assertion of jurisdiction over ``low-lying, marshy land'' immediately 
abutting a water traditionally understood as navigable on the grounds 
that it was an ``adjacent wetland'' within the meaning of the Corps' 
then existing regulations. 474 U.S. at 124. The Court addressed the 
question of whether non-navigable wetlands may be regulated as ``waters 
of the United States'' on the basis that they are ``adjacent to'' 
navigable-in-fact waters and ``inseparably bound up with'' them because 
of their ``significant effects on water quality and the aquatic 
ecosystem.'' Id. at 131-135 & n.9.
    In determining whether to give deference to the Corps' assertion of 
jurisdiction over adjacent wetlands, the Court acknowledged the 
difficulty in determining where the limits of federal jurisdiction end, 
noting that the line is somewhere between open water and dry land:


[[Page 4165]]


    In determining the limits of its power to regulate discharges 
under the Act, the Corps must necessarily choose some point at which 
water ends and land begins. Our common experience tells us that this 
is often no easy task: the transition from water to solid ground is 
not necessarily or even typically an abrupt one. Rather, between 
open waters and dry land may lie shallows, marshes, mudflats, 
swamps, bogs--in short, a huge array of areas that are not wholly 
aquatic but nevertheless fall far short of being dry land. Where on 
this continuum to find the limit of ``waters'' is far from obvious.

Id. at 132 (emphasis added). Within this statement, the Supreme Court 
identifies a basic principle for adjacent wetlands: The limits of 
jurisdiction lie within the ``continuum'' or ``transition'' ``between 
open waters and dry land.'' Observing that Congress intended the CWA 
``to regulate at least some waters that would not be deemed 
`navigable,' '' the Court therefore held that it is ``a permissible 
interpretation of the Act'' to conclude that ``a wetland that actually 
abuts on a navigable waterway'' falls within the ``definition of 
`waters of the United States.' '' Id. at 133, 135. Thus, a wetland that 
abuts a navigable water traditionally understood as navigable is 
subject to CWA permitting because it is ``inseparably bound up with the 
`waters' of the United States.'' Id. at 134. ``This holds true even for 
wetlands that are not the result of flooding or permeation by water 
having its source in adjacent bodies of open water.'' Id. The Court 
also noted that the agencies can establish categories of jurisdiction 
for adjacent wetlands. See id. at 135 n.9.
    The Supreme Court in Riverside Bayview declined to decide whether 
wetlands that are not adjacent to navigable waters could also be 
regulated by the agencies. See id. at 124 n.2 and 131 n.8. In SWANCC a 
few years later, however, the Supreme Court analyzed a similar question 
but in the context of an abandoned sand and gravel pit located some 
distance from a traditional navigable water, with excavation trenches 
that ponded--some only seasonally--and served as habitat for migratory 
birds. 531 U.S. at 162-64. The Supreme Court rejected the government's 
stated rationale for asserting jurisdiction over such ``nonnavigable, 
isolated, intrastate waters'' as outside the scope of CWA jurisdiction. 
Id. at 171-72. In doing so, the Supreme Court noted that Riverside 
Bayview upheld ``jurisdiction over wetlands that actually abutted on a 
navigable waterway'' because the wetlands were ``inseparably bound up 
with the `waters' of the United States.'' Id. at 167.\22\ As summarized 
by the SWANCC majority:
---------------------------------------------------------------------------

    \22\ For additional context, at oral argument during Riverside 
Bayview, the government attorney characterized the wetland at issue 
as ``in fact an adjacent wetland, adjacent--by adjacent, I mean it 
is immediately next to, abuts, adjoins, borders, whatever other 
adjective you might want to use, navigable waters of the United 
States.'' Official Tr. at 5-6, quoted in Edgar B. Washburn, Current 
Status of the 404 Regulatory Programs, ALI Wetlands L. & Reg. (May/
June 2001).

    It was the significant nexus between the wetlands and 
``navigable waters'' that informed our reading of the CWA in 
Riverside Bayview Homes. Indeed, we did not ``express any opinion'' 
on the ``question of authority of the Corps to regulate discharges 
of fill material into wetlands that are not adjacent to bodies of 
open water. . . . In order to rule for [the Corps] here, we would 
have to hold that the jurisdiction of the Corps extends to ponds 
that are not adjacent to open water. But we conclude that the text 
---------------------------------------------------------------------------
of the statute will not allow this.

Id. at 167-68 (internal citations omitted).
    The Court also rejected the argument that the use of the abandoned 
ponds by migratory birds fell within the power of Congress to regulate 
activities that in the aggregate have a substantial effect on 
interstate commerce, or that the CWA regulated the use of the ponds as 
a municipal landfill because such use was commercial in nature. Such 
arguments, the Court noted, raised ``significant constitutional 
questions.'' Id. at 173. ``Where an administrative interpretation of a 
statute invokes the outer limits of Congress' power, we expect a clear 
indication that Congress intended that result.'' Id. 172-73 (``Congress 
does not casually authorize administrative agencies to interpret a 
statute to push the limit of congressional authority''). This is 
particularly true ``where the administrative interpretation alters the 
federal-state framework by permitting federal encroachment upon a 
traditional state power.'' Id. at 173; see also Atascadero State 
Hospital v. Scanlon, 473 U.S. 234, 242 (1985) (``If Congress intends to 
alter the `usual constitutional balance between the States and the 
Federal Government,' it must make its intention to do so `unmistakably 
clear in the language of the statute,' ''); Gregory v. Ashcroft, 501 
U.S. 452, 460-61 (1991) (``the plain statement rule . . . 
acknowledg[es] that the States retain substantial sovereign powers 
under our constitutional scheme, powers with which Congress does not 
readily interfere.''). ``Rather than expressing a desire to readjust 
the federal-state balance in this manner, Congress chose [in the CWA] 
to `recognize, preserve, and protect the primary responsibilities and 
rights of States . . . to plan the development and use . . . of land 
and water resources . . . .'' Id. at 174 (quoting 33 U.S.C. 1251(b)). 
The Court found no clear statement from Congress that it had intended 
to permit federal encroachment on traditional State power, and 
construed the CWA to avoid the significant constitutional questions 
related to the scope of Federal authority authorized therein. Id.
    Historically, the Federal government has interpreted and applied 
the SWANCC decision narrowly, focusing on the specific holding in the 
case as rejecting federal jurisdiction over the isolated ponds and 
mudflats at issue in that case based on their use by migratory birds. 
By contrast, members of the regulated community, certain states and 
other interested stakeholders have argued that the case stands for a 
broader proposition based on key federalism and separation of powers 
principles. They argue that the case should be read as restricting 
federal jurisdiction over all ``nonnavigable, isolated, intrastate 
waters'' and argue for a broader interpretation and application of the 
rationale articulated in the decision.\23\ As the agencies revisit the 
definition of ``waters of the United States'' in this rulemaking, the 
agencies solicit comment on the proper reading of SWANCC. In addition, 
the agencies solicit comment on whether to revoke their 2003 guidance 
on the subject should the agencies finalize this proposal because 
existence of the final rule may mean that guidance on SWANCC may no be 
longer needed.
---------------------------------------------------------------------------

    \23\ See, e.g., American Farm Bureau Federation et al. to Hon. 
Andrew Wheeler and Hon. R.D. James. August 13, 2018. Docket ID: EPA-
HQ-OW-2017-0203-15275), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-15275.
---------------------------------------------------------------------------

    Several years after SWANCC, the Supreme Court considered the 
concept of adjacency in consolidated cases arising out of the Sixth 
Circuit. See Rapanos v. United States, 547 U.S. 715 (2006). In one 
case, the Corps had determined that wetlands on three separate sites 
were subject to CWA jurisdiction because they were adjacent to ditches 
or man-made drains that eventually connected to traditional navigable 
waters several miles away through other ditches, drains, creeks, and/or 
rivers. Id. at 719, 729. In another case, the Corps had asserted 
jurisdiction over a wetland separated from a man-made drainage ditch by 
a four-foot-wide man-made berm. Id. at 730. The ditch emptied into 
another ditch, which then connected to a creek, and eventually 
connected to Lake St. Clair approximately a mile from the parcel at 
issue. The berm was largely or entirely

[[Page 4166]]

impermeable, but may have permitted occasional overflow from the 
wetland to the ditch. Id. The Court, in a fractured opinion, vacated 
and remanded the Sixth Circuit's decision upholding the Corps' asserted 
jurisdiction over the four wetlands at issue, with Justice Scalia 
writing for the plurality and Justice Kennedy concurring in the 
judgment but on alternate grounds. Id. at 757 (plurality), 787 
(Kennedy, J., concurring).
    The plurality determined that CWA jurisdiction only extended to 
adjacent ``wetlands with a continuous surface connection to bodies that 
are `waters of the United States' in their own right, so that there is 
no clear demarcation between `waters' and wetlands.'' Id. at 742. The 
plurality then concluded that ``establishing . . . wetlands . . . 
covered by the Act requires two findings: First that the adjacent 
channel contains a `wate[r] of the United States,' (i.e., a relatively 
permanent body of water connected to traditional interstate navigable 
waters); and second, that the wetland has a continuous surface 
connection with that water, making it difficult to determine where the 
`water' ends and the `wetland' begins.'' Id. (alteration in original).
    In reaching the adjacency component of the two-part analysis, the 
plurality interpreted the Riverside Bayview decision, and subsequent 
SWANCC decision characterizing Riverside Bayview, as authorizing 
jurisdiction over wetlands that physically abutted traditional 
navigable waters. Id. at 740-42. The plurality focused on the 
``inherent ambiguity'' described in Riverside Bayview in determining 
where on the continuum between open waters and dry land the scope of 
federal jurisdiction should end. Id. at 740. It was ``the inherent 
difficulties of defining precise bounds to regulable waters,'' id. at 
741 n.10, according to the plurality, that prompted the Court in 
Riverside Bayview to defer to the Corps' inclusion of adjacent wetlands 
as ``waters'' subject to CWA jurisdiction based on proximity. Id. at 
741 (``When we characterized the holding of Riverside Bayview in 
SWANCC, we referred to the close connection between waters and the 
wetlands they gradually blend into: `It was the significant nexus 
between the wetlands and `navigable waters' that informed our reading 
of the CWA in Riverside Bayview Homes.' ''); see also Riverside 
Bayview, 474 U.S. 134, quoting 42 FR 37128 (July 19, 1977) (``For this 
reason, the landward limit of Federal jurisdiction under Section 404 
must include any adjacent wetlands that form the border of or are in 
reasonable proximity to other waters of the United States, as these 
wetlands are part of this aquatic system.''). The plurality also noted 
that ``SWANCC rejected the notion that the ecological considerations 
upon which the Corps relied in Riverside Bayview . . . provided an 
independent basis for including entities like `wetlands' (or `ephemeral 
streams') within the phrase `the waters of the United States.' SWANCC 
found such ecological considerations irrelevant to the question whether 
physically isolated waters come within the Corps' jurisdiction.'' Id. 
at 741-42 (original emphasis).
    Justice Kennedy disagreed with the plurality's determination that 
adjacency requires a ``continuous surface connection'' to covered 
waters. Id. at 772. In reading the phrase ``continuous surface 
connection'' to mean a continuous ``surface-water connection,'' id. at 
776, and interpreting the plurality's standard to include a ``surface-
water-connection requirement,'' id. at 774, Justice Kennedy stated that 
``when a surface-water connection is lacking, the plurality forecloses 
jurisdiction over wetlands that abut navigable-in-fact waters--even 
though such navigable waters were traditionally subject to federal 
authority,'' id. at 776, despite the fact that the Riverside Bayview 
Court ``deemed it irrelevant whether `the moisture creating the 
wetlands . . . find[s] its source in the adjacent bodies of water.'' 
Id. at 772 (internal citations omitted).
    The plurality did not directly address the precise distinction 
raised by Justice Kennedy, but did note in response that the 
``Riverside Bayview opinion required'' a ``continuous physical 
connection,'' id. at 751 n.13 (emphasis added), and focused on 
evaluating adjacency between a ``water'' and a wetland ``in the sense 
of possessing a continuous surface connection that creates the 
boundary-drawing problem we addressed in Riverside Bayview.'' Id. at 
757. The plurality also noted that its standard includes a ``physical-
connection requirement'' between wetlands and covered waters. Id. at 
751 n.13. In other words, the plurality appeared to be more focused on 
the abutting nature rather than the source of water creating the 
wetlands at issue in Riverside Bayview to describe the legal constructs 
applicable to adjacent wetlands, see id. at 747; see also Webster's II, 
New Riverside University Dictionary (1994) (defining ``abut'' to mean 
``to border on'' or ``to touch at one end or side of something''), and 
indeed agreed with Justice Kennedy and the Riverside Bayview Court that 
``[a]s long as the wetland is `adjacent' to covered waters . . . its 
creation vel non by inundation is irrelevant.'' Id. at 751 n.13.\24\
---------------------------------------------------------------------------

    \24\ The agencies' Rapanos Guidance recognizes that the 
plurality's ``continuous surface connection'' does not refer to a 
continuous surface water connection. See, e.g., Rapanos Guidance at 
n.28 (``A continuous surface connection does not require surface 
water to be continuously present between the wetland and the 
tributary.'')
---------------------------------------------------------------------------

    Because wetlands with a physically remote hydrologic connection do 
not raise the same boundary-drawing problem presented by actually 
abutting wetlands, the plurality determined that the ``inherent 
ambiguity in defining where water ends and abutting (`adjacent') 
wetlands begin'' upon which Riverside Bayview rests does not apply to 
such features. Id. at 742 (``Wetlands with only an intermittent, 
physically remote hydrologic connection to `waters of the United 
States' do not implicate the boundary-drawing problem of Riverside 
Bayview, and thus lack the necessary connection to covered waters that 
we described as a `significant nexus' in SWANCC[.]''). The plurality 
supported this position by referring to the Court's treatment of 
certain isolated waters in SWANCC as non-jurisdictional. Id. 741-42 
(``We held that `nonnavigable, isolated, intrastate waters--which, 
unlike the wetlands at issue in Riverside Bayview, did not `actually 
abu[t] on a navigable waterway,'--were not included as `waters of the 
United States.' ''). The plurality found ``no support for the inclusion 
of physically unconnected wetlands as covered `waters' '' based on 
Riverside Bayview's treatment of the Corps' definition of adjacent. Id. 
at 747; see also id. at 746 (``the Corps' definition of `adjacent' . . 
. has been extended beyond reason.'').
    Although ultimately concurring in judgment, Justice Kennedy focused 
on the ``significant nexus'' between adjacent wetlands and traditional 
navigable waters as the basis for determining whether a wetland is a 
water subject to CWA jurisdiction. He quotes the SWANCC decision, which 
explains, ``[i]t was the significant nexus between wetlands and 
navigable waters . . . that informed our reading of the [Act] in 
Riverside Bayview Homes.'' 531 U.S. at 167.
    Justice Kennedy then notes that: ``Because such a nexus [in that 
case] was lacking with respect to isolated ponds, the Court held that 
the plain text of the statute did not permit the Corps' action.'' 547 
U.S. at 767. Justice Kennedy notes that the wetlands at issue in 
Riverside Bayview were ``adjacent to [a] navigable-in-fact waterway[ 
]'' while the ``ponds and

[[Page 4167]]

mudflats'' considered in SWANCC ``were isolated in the sense of being 
unconnected to other waters covered by the Act.'' Id. at 765-66. 
``Taken together, these cases establish that in some instances, as 
exemplified by Riverside Bayview, the connection between a nonnavigable 
water or wetland and a navigable water may be so close, or potentially 
so close, that the Corps may deem the water or wetland a `navigable 
water' under the Act. In other instances, as exemplified by SWANCC, 
there may be little or no connection. Absent a significant nexus, 
jurisdiction under the Act is lacking.'' Id. at 767.
    According to Justice Kennedy, whereas the isolated ponds and 
mudflats in SWANCC lacked a ``significant nexus'' to navigable waters, 
it is the ``conclusive standard for jurisdiction'' based on ``a 
reasonable inference of ecological interconnection'' between adjacent 
wetlands and navigable-in-fact waters that allows for their categorical 
inclusion as ``waters of the United States.'' Id. at 780 (``[T]he 
assertion of jurisdiction for those wetlands [adjacent to navigable-in-
fact waters] is sustainable under the act by showing adjacency 
alone.''). Justice Kennedy surmised that it may be that the same 
rationale ``without any inquiry beyond adjacency . . . could apply 
equally to wetlands adjacent to certain major tributaries,'' noting 
that the Corps could establish by regulation categories of tributaries 
based on volume of flow, proximity to navigable waters, or other 
factors that ``are significant enough that wetlands adjacent to them 
are likely, in the majority of cases, to perform important functions 
for an aquatic system incorporating navigable waters.'' Id. at 780-81. 
However, ``[t]he Corps' existing standard for tributaries'' provided 
Justice Kennedy ``no such assurance'' to infer the categorical 
existence of a requisite nexus between waters traditionally understood 
as navigable and wetlands adjacent to nonnavigable tributaries. Id. at 
781. That is because

the breadth of the [tributary] standard--which seems to leave wide 
room for regulation of drains, ditches, and streams remote from any 
navigable-in-fact water and carrying only minor water volumes 
towards it--precludes its adoption as the determinative measure of 
whether adjacent wetlands are likely to play an important role in 
the integrity of an aquatic system comprising navigable waters as 
traditionally understood. Indeed, in many cases, wetlands adjacent 
to tributaries covered by this standard might appear little more 
related to navigable-in-fact waters than were the isolated ponds 
held to fall beyond the Act's scope in SWANCC.

Id. at 781-82.
    To avoid this outcome, Justice Kennedy stated that, absent 
development of a more specific regulation and categorical inclusion of 
wetlands adjacent to ``certain major'' or even ``minor'' tributaries as 
was established in Riverside Bayview, id. at 780-81, the Corps ``must 
establish a significant nexus on a case-by-case basis when it seeks to 
regulate wetlands based on adjacency to nonnavigable tributaries. Given 
the potential overbreadth of the Corps' regulations, this showing is 
necessary to avoid unreasonable applications of the statute.'' Id. at 
782. Justice Kennedy stated that adjacent ``wetlands possess the 
requisite nexus, and thus come within the statutory phrase `navigable 
waters,' if the wetlands, either alone or in combination with similarly 
situated lands in the region, significantly affect the chemical, 
physical, and biological integrity of other covered waters more readily 
understood as `navigable.' '' Id. at 780. ``Where an adequate nexus is 
established for a particular wetland, it may be permissible, as a 
matter of administrative convenience or necessity, to presume covered 
status for other comparable wetlands in the region.'' Id. at 782.
    In establishing this significant nexus test, Justice Kennedy 
relied, in part, on the overall objective of the CWA to ``restore and 
maintain the chemical, physical and biological integrity of the 
Nation's waters.'' Id. at 779 (quoting 33 U.S.C. 1251(a)). However, 
Justice Kennedy also acknowledged that ``environmental concerns provide 
no reason to disregard limits in the statutory text.'' Id. at 778. With 
respect to wetlands adjacent to nonnavigable tributaries, Justice 
Kennedy therefore determined that ``mere adjacency . . . is 
insufficient. A more specific inquiry, based on the significant-nexus 
standard, is . . . necessary.'' Id. at 786. By not requiring adjacent 
wetlands to possess a significant nexus with navigable waters, Justice 
Kennedy noted that under the Corps' interpretation, federal regulation 
would be permitted ``whenever wetlands lie alongside a ditch or drain, 
however remote or insubstantial, that eventually may flow into 
traditional navigable waters. The deference owed the Corps' 
interpretation of the statute does not extend so far.'' Id at 778-79.
    Since the Rapanos decision, the Federal government has adopted a 
broad interpretation of Justice Kennedy's concurring opinion, arguing 
that his ``significant nexus'' test provides an independent basis for 
establishing jurisdiction over certain waters of the United States. And 
rather than limiting the application of Justice Kennedy's opinion to 
the specific facts and wetlands at issue in that case, the agencies 
have applied the rationale more broadly to include, for example, the 
application of the significant nexus test to determining jurisdiction 
over tributaries, not just wetlands. Many courts have agreed with this 
position and rely exclusively on Justice Kennedy's significant nexus 
test, or have held that jurisdiction can be established under either 
the plurality or concurring opinions. The agencies note that their 
historically broad interpretation and application of Justice Kennedy's 
opinion stands in contrast to their more narrow reading and application 
of the majority opinion in SWANCC, where the agencies have historically 
limited the decision's application to isolated ponds and mudflats used 
by migratory birds. The agencies therefore invite comment on their 
reliance on Justice Kennedy's opinion, particularly as compared to 
their treatment of the SWANCC decision. The agencies also solicit 
comment on whether they should revoke their 2008 Rapanos Guidance 
should the agencies finalize this proposal because existence of the 
final rule may mean that guidance on Rapanos may no longer be needed.
    In summary, although the standards that the plurality and Justice 
Kennedy established are not identical, and each standard excludes some 
waters that the other standard does not, the standards contain 
substantial similarities. The plurality and Justice Kennedy agree in 
principle that the determination must be made using a basic two-step 
approach that considers: (1) The connection of the wetland to the 
tributary; and (2) the status of the tributary with respect to 
downstream traditional navigable waters. The plurality and Justice 
Kennedy also agree that the connection between the wetland and the 
tributary must be close. The plurality refers to that connection as a 
``continuous surface connection'' or ``continuous physical 
connection,'' as demonstrated in Riverside Bayview. Id. at 742, 751 
n.13. Justice Kennedy recognizes that ``the connection between a 
nonnavigable water or wetland and a navigable water may be so close, or 
potentially so close, that the Corps may deem the water or wetland a 
`navigable water' under the Act.'' Id. at 767. The second part of their 
common analytical framework is addressed in the next section.
b. Tributaries
    The definition of tributary was not addressed in either Riverside 
Bayview or

[[Page 4168]]

SWANCC. And while the focus of Rapanos was on whether the Corps could 
regulate wetlands far removed from navigable-in-fact waters, the 
plurality and concurring opinions do provide some guidance as to the 
potential regulatory status of tributaries to navigable-in-fact waters.
    The plurality and Justice Kennedy both recognize the jurisdictional 
scope of the CWA is not restricted to traditional navigable waters. 
Rapanos, 547 U.S. at 731 (Scalia, J., plurality) (``the Act's term 
`navigable waters' includes something more than traditional navigable 
waters''); id. at 767 (Kennedy, J., concurring) (``Congress intended to 
regulate at least some waters that are not navigable in the traditional 
sense.''). Both also agree that federal authority under the Act is not 
without limit. See id. at 731-32 (plurality) (``the waters of the 
United States . . . cannot bear the expansive meaning that the Corps 
would give it''); id. at 778-79 (Kennedy, J., concurring) (``The 
deference owed to the Corps' interpretation of the statute does not 
extend'' to ``wetlands'' which ``lie alongside a ditch or drain, 
however remote or insubstantial, that eventually may flow into 
traditional navigable waters.'').
    With respect to tributaries specifically, both the plurality and 
Justice Kennedy focus in part on a tributary's contribution of flow to 
and connection with traditional navigable waters. The plurality would 
include as ``waters of the United States'' ``only relatively permanent, 
standing or flowing bodies of water'' and would define such ``waters'' 
as including streams, rivers, oceans, lakes and other bodies of waters 
that form geographical features, noting that all such ``terms connote 
continuously present, fixed bodies of water . . . .'' Id. at 732-33, 
739. The plurality would also require relatively permanent waters to be 
connected to traditional navigable waters in order to be 
jurisdictional. See id. at 742 (describing a `` `wate[r] of the United 
States''' as ``i.e., a relatively permanent body of water connected to 
traditional interstate navigable waters'') (emphasis added). The 
plurality would exclude ephemeral flows and related features, stating 
``[n]one of these terms encompasses transitory puddles or ephemeral 
flows of water.'' Id. at 733; see also id. at 734 (``In applying the 
definition to `ephemeral streams,' . . . the Corps has stretched the 
term `waters of the United States' beyond parody. The plain language of 
the statute simply does not authorize this `Land Is Waters' approach to 
federal jurisdiction.''). Justice Kennedy would likely exclude some 
streams considered jurisdictional under the plurality's test, but he 
may include some that would be excluded by the plurality. See id. at 
769 (noting that under the plurality's test, ``[t]he merest trickle, if 
continuous, would count as a `water' subject to federal regulation, 
while torrents thundering at irregular intervals through otherwise dry 
channels would not'').
    Both the plurality and Justice Kennedy would include some seasonal 
or intermittent streams as ``waters of the United States.'' Id. at 733 
& n.5, 769. The plurality noted, for example, that its reference to 
``relatively permanent'' waters did ``not necessarily exclude streams, 
rivers, or lakes that might dry up in extraordinary circumstances, such 
as drought,'' or ``seasonal rivers, which contain continuous flow 
during some months of the year but no flow during dry months . . . .'' 
Id. at 732 n.5 (emphasis in original). Neither the plurality nor 
Justice Kennedy, however, defined with precision where to draw the 
line. The plurality provides that ``navigable waters'' must have ``at a 
bare minimum, the ordinary presence of water,'' id. at 734, and Justice 
Kennedy notes that the Corps can identify by regulation categories of 
tributaries based on volume of flow, proximity to navigable waters, or 
other factors that ``are significant enough that wetlands adjacent to 
them are likely, in the majority of cases, to perform important 
functions for an aquatic system incorporating navigable waters.'' Id. 
at 780-81.
    Both the plurality and Justice Kennedy also agreed that the Corps' 
existing treatment of tributaries raised significant jurisdictional 
concerns. For example, the plurality was concerned about the Corps' 
broad interpretation of tributaries themselves. See id. at 738 
(plurality) (``Even if the term `the waters of the United States' were 
ambiguous as applied to channels that sometimes host ephemeral flows of 
water (which it is not), we would expect a clearer statement from 
Congress to authorize an agency theory of jurisdiction that presses the 
envelope of constitutional validity.''). And Justice Kennedy objected 
to the categorical assertion of jurisdiction over wetlands adjacent to 
the Corps' existing standard for tributaries ``which seems to leave 
wide room for regulation of drains, ditches, and streams remote from 
any navigable-in-fact water and carrying only minor water volumes 
towards it'' Id. at 781 (Kennedy, J. concurring), see also id. at 781-
82 (``[I]n many cases wetlands adjacent to tributaries covered by this 
standard might appear little more related to navigable-in-fact waters 
than were the isolated ponds held to fall beyond the Act's scope in 
SWANCC.''). Thus, while the plurality and Justice Kennedy viewed the 
question of federal CWA jurisdiction differently, there are sufficient 
commonalities between these opinions to help instruct the agencies on 
where to draw the line between Federal and State waters.
3. Principles and Considerations
    As discussed in the previous section, a few important principles 
emerge that can serve as the basis for the agencies' proposed 
regulatory definitions. As a threshold matter, the power conferred on 
the agencies under the CWA to regulate the ``waters of the United 
States'' is grounded in Congress' commerce power over navigation. The 
agencies can choose to regulate beyond waters more traditionally 
understood as navigable, including some tributaries to those 
traditional navigable waters, but must provide a reasonable basis 
grounded in the language and structure of the Act for determining the 
extent of jurisdiction. The agencies can also choose to regulate 
wetlands adjacent to the traditional navigable waters and some 
tributaries, if the wetlands are closely connected to the tributaries, 
such as in the transitional zone between open waters and dry land. The 
Supreme Court's opinion in SWANCC, however, calls into question the 
agencies' authority to regulate nonnavigable, isolated, intrastate 
waters that lack a sufficient connection to traditional navigable 
waters, and suggests that the agencies should avoid regulatory 
interpretations of the CWA that raise constitutional questions 
regarding the scope of their statutory authority. Finally, the agencies 
can regulate certain waters by category, which could improve regulatory 
predictability and certainty and ease administrative burden while still 
effectuating the purposes of the Act.
    In developing a clear and predictable regulatory framework to 
support this proposed rule, the agencies also recognize and respect the 
primary responsibilities and rights of States and Tribes to regulate 
their land and water resources. See 33 U.S.C. 1251(b), 1370. The oft-
quoted objective of the CWA to ``restore and maintain the chemical, 
physical, and biological integrity of the Nation's waters,'' id. at 
1251(a), must be implemented in a manner consistent with Congress' 
policy directives to the agencies. The Supreme Court long ago 
recognized the distinction between federal waters traditionally 
understood as navigable and waters ``subject to the control of the 
States.'' The Daniel Ball, 77 U.S. (10 Wall.) 557, 564-65 (1870).

[[Page 4169]]

Over a century later, the Supreme Court in SWANCC reaffirmed the 
State's ``traditional and primary power over land and water use.'' 531 
U.S. at 174; accord Rapanos, 547 U.S. at 738 (Scalia, J., plurality 
opinion).
    Ensuring that States retain authority over their land and water 
resources pursuant to section 101(b) and section 510 helps carry out 
the overall objective of the CWA and ensures that the agencies are 
giving full effect and consideration to the entire structure and 
function of the Act. See, e.g., id. at 755-56 (Scalia, J., plurality 
opinion) (``[C]lean water is not the only purpose of the statute. So is 
the preservation of primary state responsibility for ordinary land-use 
decisions. 33 U.S.C. 1251(b).'') (original emphasis). That includes the 
dozens of non-regulatory grant, research, nonpoint source, groundwater, 
and watershed planning programs that were intended by Congress to 
assist the States in controlling pollution in the nation's waters, not 
just its navigable waters. These non-regulatory sections of the CWA 
reveal Congress' intent to restore and maintain the integrity of the 
nation's waters using federal assistance to support State and local 
partnerships to control pollution of in the nation's waters in addition 
to a federal regulatory prohibition on the discharge of pollutants into 
its navigable waters. Controlling all waters using the Act's federal 
regulatory mechanisms would significantly reduce the need for the more 
holistic planning provisions of the Act and the state partnerships they 
entail. Therefore, by recognizing the distinctions between the nation's 
waters and its navigable waters and between the overall objective and 
goals of the CWA and the specific policy directives from Congress, the 
agencies can fully implement the entire structure of the Act while 
respecting the specific word choices of Congress. See, e.g., Nat'l 
Fed'n of Indep. Bus. v. Sebelius, 567 U.S. at 544.
    Further, the agencies are cognizant that the ``Clean Water Act 
imposes substantial criminal and civil penalties for discharging any 
pollutant into waters covered by the Act without a permit . . . .'' 
U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807, 1812 
(2016); see also Sackett v. EPA, 132 S. Ct. 1367, 1374-75 (2012) 
(Alito, J., concurring) (``[T]he combination of the uncertain reach of 
the Clean Water Act and the draconian penalties imposed for the sort of 
violations alleged in this case still leaves most property owners with 
little practical alternative but to dance to the EPA's tune.''). As the 
Chief Justice observed in Hawkes, ``[i]t is often difficult to 
determine whether a particular piece of property contains waters of the 
United States, but there are important consequences if it does.'' Id.; 
see also id. at 1816-17 (Kennedy, J., concurring) (``the reach and 
systemic consequences of the Clean Water Act remain a cause for 
concern'' and ``continues to raise troubling questions regarding the 
Government's power to cast doubt on the full use and enjoyment of 
private property throughout the Nation''). Given the significant civil 
and criminal penalties associated with the CWA, the agencies seek to 
promote regulatory certainty while providing fair and predictable 
notice of the limits of federal jurisdiction. See, e.g., Sessions v. 
Dimaya, No. 15-1498, 2018 U.S. LEXIS 2497, at *39, 42-43 (Apr. 17, 
2018) (Gorsuch, J., concurring in part and concurring in judgment) 
(characterizing fair notice as possibly the most fundamental of the 
protections provided by the Constitution's guarantee of due process, 
and stating that vague laws are an exercise of ``arbitrary power . . . 
leaving the people in the dark about what the law demands and allowing 
prosecutors and courts to make it up'').
    Under this proposed rule, the agencies would not view the 
definition of ``waters of the United States'' as conclusively 
determining which of the nation's waters warrant environmental 
protection; rather, the agencies interpret the definition as drawing 
the boundary between those waters subject to federal requirements under 
the CWA and those waters that States and Tribes are free to manage 
under their independent authorities. The agencies are proposing this 
line-drawing based primarily on their interpretation of the language, 
structure, and legislative history of the statute and the policy 
choices of the executive branch agencies.
    The agencies interpret their authority to include promulgation of a 
new regulatory definition of ``waters of the United States,'' 
consistent with the guidance in Executive Order 13778, so long as the 
new definition is authorized under the law and based on a reasoned 
explanation. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 
(2009) (``Fox''). A revised rulemaking based on a desired change in 
policy is well within an agency's discretion and ``[a] change in 
administration brought about by the people casting their votes is a 
perfectly reasonable basis for an executive agency's reappraisal'' of 
its regulations and programs. Nat'l Ass'n of Home Builders v. EPA, 682 
F.3d 1032, 1038 & 1043 (D.C. Cir. 2012) (citing Fox, 556 U.S. at 514-15 
(Rehnquist, J., concurring in part and dissenting in part)). In 
developing this proposed rule, the agencies have re-evaluated their 
legal authority and those policies that they deem most important in 
shaping the jurisdiction of the CWA: Prioritizing the text of the 
statute, adherence to constitutional limitations, including the 
autonomy of States, and providing clarity for the regulated community.
    The agencies consider these proposed priorities to be reasonable, 
especially in light of the long history of controversy and confusion 
over this definition. In concurring with the Rapanos plurality 
decision, Chief Justice Roberts stated that ``[g]iven the broad, 
somewhat ambiguous, but clearly limiting terms Congress employed in the 
Clean Water Act, the [agencies] would have enjoyed plenty of room to 
operate in developing some notion of an outer bound to the reach of 
their authority'' under the CWA, and that the agencies' interpretations 
under the Act are ``afforded generous leeway by the courts.'' Rapanos, 
547 U.S. at 758 (Roberts, C.J., concurring) (emphasis in original) 
(``Rather than refining its view of its authority in light of our 
decisions in SWANCC, . . . the Corps chose to adhere to its essentially 
boundless view of the scope of its power. The upshot today is another 
defeat for the agency.''). In this proposed rule, as described in 
detail in Section III below, the agencies are proposing outer bounds 
for their authority under the Act that they consider objective and 
reasonable, and that are consistent with its text, structure, 
legislative history and applicable Supreme Court precedent. The 
agencies solicit comment on all aspects of the proposed definition and 
whether it would strike the proper balance between the regulatory 
authority of the Federal government and States, meets its obligation to 
provide fair notice to members of the regulated community, and adheres 
to the overall structure and function of the CWA by ensuring the 
protection of the nation's waters.

III. Proposed Definition of ``Waters of the United States''

    Below is a summary of the key substantive provisions of this 
proposed rule. Each subsection describes what the agencies are 
proposing, why the agencies are proposing this approach, how the 
agencies might implement the approach, and specific issues upon which 
the agencies are seeking comment. To assist the reader, the longer 
subsections have internal headings.
    As a threshold matter, in this proposal the agencies would 
interpret the term ``the waters'' in the phrase ``the waters

[[Page 4170]]

of the United States'' to encompass relatively permanent flowing and 
standing waterbodies that are traditional navigable waters in their own 
right or that have a specific connection to traditional navigable 
waters, as well as wetlands abutting or having a direct hydrologic 
surface connection to those waters. As the plurality decision in 
Rapanos notes, the term ``the waters'' is most commonly understood to 
refer to ``streams and bodies forming geographical features such as 
oceans, rivers, lakes,'' or ``the flowing or moving masses, as of waves 
or floods, making up such streams or bodies.'' 547 U.S. at 732 (citing 
Webster's New International Dictionary 2882 (2d ed. 1954)); see also 
Riverside Bayview, 474 U.S. at 131 (characterizing ``waters of the 
United States'' as ``rivers, streams, and other hydrographic features 
more conventionally identifiable as `waters.' ''); see also 118 Cong. 
Rec. 33699 (Oct. 4, 1972) (statement of Sen. Muskie) (referring to 
``navigable waters'' as ``water bodies''). According to the Rapanos 
plurality, however, the ordinary meaning of the term ``waters'' does 
not include areas that are dry most of the year, and which may 
occasionally contain ``transitory puddles or ephemeral flows of 
water.'' See Rapanos, 547 U.S. at 733.
    The agencies are also proposing a definition of ``waters of the 
United States'' to align with the intent of Congress to broadly 
interpret the term ``navigable waters'' beyond just commercially 
navigable-in-fact waters. See, e.g., S. Conf. Rep. No. 92-1236, p. 144 
(1972). As proposed, this definition recognizes Congress' intent ``to 
exercise its powers under the Commerce Clause to regulate at least some 
waters that would not be deemed `navigable' under the classical 
understanding of that term,'' Riverside Bayview, 474 U.S. at 133, but 
at the same time acknowledges ``[t]he grant of authority to Congress 
under the Commerce Clause, though broad, is not unlimited.'' SWANCC, 
531 U.S. at 173. The definition also recognizes the constitutional 
underpinnings of the CWA, which was Congress exercising ``its commerce 
power over navigation.'' Id. at 168 n.3.
    This proposal is intended to establish categorical bright lines 
that provide clarity and predictability for regulators and the 
regulated community by defining ``waters of the United States'' to 
include the following: Traditional navigable waters, including the 
territorial seas; tributaries of such waters; certain ditches; certain 
lakes and ponds; impoundments of otherwise jurisdictional waters; and 
wetlands adjacent to other jurisdictional waters. The agencies propose 
to eliminate the case-by-case application of Justice Kennedy's 
significant nexus test, proposing instead the establishment of clear 
categories of jurisdictional waters that adhere to the basic principles 
articulated in the Riverside Bayview, SWANCC, and Rapanos decisions 
while respecting the overall structure and function of the CWA.

A. Traditional Navigable Waters and Territorial Seas

    The proposed definition of ``waters of the United States'' would 
encompass traditional navigable waters, including the territorial seas. 
Since the passage of the CWA, the first paragraph of the agencies' 
definition of ``waters of the United States'' has included all waters 
that are currently used, or were used in the past, or may be 
susceptible to use in interstate or foreign commerce, including all 
waters which are subject to the ebb and flow of the tide. See, e.g., 33 
CFR 328.3(a)(1). This paragraph of the 1986 and 2015 regulations 
encompasses waters that are often referred to as waters more 
traditionally understood as navigable or ``traditional navigable 
waters.'' The second paragraph of the 1986 and 2015 regulations lists 
the territorial seas as jurisdictional. See id. To streamline and 
simplify the definition of ``waters of the United States,'' the 
agencies propose to include both traditional navigable waters and the 
territorial seas as a single category of jurisdictional waters. The 
agencies can think of no instance in which a territorial sea would not 
also be considered traditionally navigable, and thus the broader term 
should suffice. The agencies are proposing no other changes to these 
historically regulated categories of waters.
    The agencies note that the term ``territorial seas'' is defined in 
CWA section 502(8), 33 U.S.C. 1362(8), as ``the belt of the seas 
measured from the line of ordinary low water along that portion of the 
coast which is in direct contact with the open sea and the line marking 
the seaward limit of inland waters, and extending seaward a distance of 
three miles.'' The territorial seas establish the seaward limit of 
``waters of the United States.'' The agencies are not proposing to 
replicate this definition in this proposed rule, but request comment on 
whether adding the definition would improve regulatory clarity.
    The agencies interpret traditional navigable waters as all waters 
that are currently defined in 33 CFR part 329, which implements 
sections 9 and 10 of the Rivers and Harbors Act, and by numerous 
decisions of the federal courts, as well as all other waters that are 
navigable-in-fact. The definition of navigable-in-fact originates with 
the Supreme Court's decision in The Daniel Ball, 77 U.S. 557 (1870). In 
that case, the Supreme Court stated:

    Those rivers must be regarded as public navigable rivers in law 
which are navigable in fact. And they are navigable in fact when 
they are used, or are susceptible of being used, in their ordinary 
condition, as highways for commerce, over which trade and travel are 
or may be conducted in the customary modes of trade and travel on 
water.

    In subsequent decisions, the Supreme Court clarified that waters 
that are navigable-in-fact include waters beyond those capable of 
navigation by large vessels, The Montello, 87 U.S. 430, 441-42 (1874); 
as well as waters that are not continuously navigable or are not 
navigable in all seasons, Economy Light and Power Co. v. U.S., 256 U.S. 
113, 122 (1921); and waters that have never been used in commerce, so 
long as they are susceptible for use in commerce. U.S. v. Utah, 283 
U.S. 64 (1931); U.S. v. Appalachian Elec. Power Co., 311 U.S. 377 
(1940). The proposed rule does not modify the text that supports the 
agencies' longstanding interpretation of ``traditional navigable 
waters.'' Nonetheless, the pre-proposal recommendations docket received 
several comments on how to interpret ``traditional navigable waters,'' 
including comments about what constitutes navigability for purposes of 
that term and what it means to be ``susceptible to use'' in commerce.
    Several pre-proposal commenters, for example, identified confusion 
in recent years associated with the agencies' interpretation and field 
implementation of the tests for determining navigability. Those 
commenters point out that determinations made by the agencies using the 
Rapanos Guidance, and in particular Appendix D to that guidance, may 
have allowed for the regulation of waters that are not navigable-in-
fact within the legal construct established for such waters by the 
courts. The agencies therefore solicit comment on and request specific 
examples of where that may be the case. As the agencies consider 
whether Appendix D is sufficiently clear regarding the regulation of 
these foundational waters, the agencies solicit comment on whether the 
existing guidance regarding the scope of traditional navigable waters 
should be updated to help improve clarity and predictability of the 
agencies' regulatory program. The agencies also solicit comment on 
whether the regulation of this category of waters has been or can be 
clarified

[[Page 4171]]

through existing, modified, or new exclusions to the term ``waters of 
the United States,'' or other regulatory changes.

B. Interstate Waters

1. What are the agencies proposing?
    The 1986 regulations define ``waters of the United States'' to 
include interstate waters, including interstate wetlands. In this 
proposal, the agencies would remove interstate waters and interstate 
wetlands as a separate category of ``waters of the United States'' to 
more closely align the definition to the constitutional and statutory 
authorities reflected in the CWA and judicial interpretations of the 
term ``navigable waters,'' while balancing the statute's policy 
directives to preserve and protect the rights and responsibilities of 
the States.
2. Why are the agencies proposing this approach?
    The agencies have evaluated their earlier legal and policy 
rationales supporting the inclusion of interstate waters as a separate 
category of ``waters of the United States'' and are proposing to 
eliminate the category in this rulemaking. The agencies are concerned 
that the regulation of interstate waters is a relic of the original 
Water Pollution Control Act (WPCA) of 1948 and lacks foundation in 
statutory text. The WPCA stated that the ``pollution of interstate 
waters in or adjacent to any State or States (whether the matter 
causing or contributing to such pollution is discharged directly into 
such waters or reaches such waters after discharge into a tributary of 
such waters) which endangers the health or welfare of persons in a 
State other than that in which the discharge originates, is declared to 
be a public nuisance and subject to abatement as provided by the Act.'' 
WPCA of 1948, 2(d)(1), (4), 62 Stat. 1155, 1156-57. The statute defined 
``interstate waters'' as all rivers, lakes, and other waters that flow 
across, or form a part of, state boundaries. Id. at 10, 62 Stat. 1161.
    In 1961, Congress amended the statute to substitute the term 
``interstate or navigable waters'' for ``interstate waters.'' See 
Public Law 87-88, 75 Stat. 208 (1961). In 1965, Congress amended the 
statute to require states to develop water quality standards for all 
``interstate waters'' within their borders. See Public Law 89-234, 79 
Stat. 908 (1965). In 1972, Congress amended the statute again and 
selected the term ``navigable waters'' as the operative term for the 
major regulatory programs established by the 1972 amendments, dropping 
the definition of interstate waters from the statute. See, e.g., 33 
U.S.C. 1362(7) (defining ``navigable waters'' as ``waters of the United 
States''). In doing so, however, Congress allowed the continued 
enforcement of water quality standards for interstate waters developed 
by the States under the pre-1972 statutory program. See 33 U.S.C. 
1313(a).
    The EPA promulgated its first regulatory definition for the term 
``waters of the United States'' in 1973. 38 FR 13528 (May 22, 1973). In 
that regulation, the EPA administratively determined that ``interstate 
waters'' should be a separate category of waters of the United States, 
distinct from the traditional navigable waters category, and the 
agencies have retained it as a separate category ever since, including 
in the 2015 Rule.
    The agencies have historically viewed navigable and interstate 
waters as having distinct and separate meanings because Congress in 
1961 identified both in the statute. The agencies have explained their 
continuing interpretation in part through the doctrine of congressional 
acquiescence, in that Congress was aware of the EPA's retention of 
interstate waters as a separate category when amending the CWA in 1977 
(making no amendments to remove the agencies' regulatory inclusion of 
interstate waters), and therefore acquiesced to its inclusion as a 
separate category. The agencies have also historically relied on two 
Supreme Court cases (Illinois v. Milwaukee, 406 U.S. 91 (1972) and City 
of Milwaukee v. Illinois, 451 U.S. 304 (1981)), addressing interstate 
water pollution to further support their position. In the 1972 case, 
which was decided prior to the date of the 1972 CWA amendments, the 
Supreme Court referred to the two categories in the disjunctive, 
implying that the Court viewed the pre-1972 statutory program as 
encompassing two separate categories. See Illinois, 406 U.S. at 102 
(``it is federal, not state, law that in the end controls pollution of 
interstate or navigable waters'') (emphasis added). Finally, the 
agencies historically have referred to section 303(c) of the CWA as 
further evidence that Congress intended interstate waters to be 
retained as an independent category of jurisdictional waters because 
that provision allowed the continuing enforcement of water quality 
standards for ``interstate waters'' developed following the 1965 
amendments. A summary of the agencies' prior legal position with 
respect to interstate waters was included in a Technical Support 
Document prepared in support of the 2015 Rule (``2015 Rule TSD'').\25\
---------------------------------------------------------------------------

    \25\ U.S. EPA and U.S. Army Corps of Engineers. Technical 
Support Document for the Clean Water Rule: Definition of Waters of 
the United States (May 2015) (Docket ID: EPA-HQ-OW-2011-0880-20869), 
available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20869.
---------------------------------------------------------------------------

    The agencies note that when Congress enacted the 1972 CWA 
amendments, it selected the term ``navigable waters'' to frame the 
scope of federal regulatory jurisdiction under the Act. To the extent 
interstate waters were viewed by Congress as a separate and distinct 
category, the agencies now consider a more natural interpretation of 
the 1972 amendments to be an express rejection of that category as 
Congress had before it both options within the scope of the statute it 
was modifying. Congress specifically did not carry that term forward as 
the operative phrase for federal jurisdiction. Under basic canons of 
statutory construction, the agencies begin with the presumption that 
Congress did so intentionally. See, e.g., Stone v. INS, 514 U.S. 386, 
397 (1995) (``When Congress acts to amend a statute, we presume it 
intends its amendment to have real and substantial effect.'').
    Congressional acquiescence is a doctrine of limited application and 
was specifically rejected as a basis for expansive federal jurisdiction 
in SWANCC in the context of analyzing the Corps' 1977 regulations. 
SWANCC, 531 U.S. at 170-71 (``Although we have recognized congressional 
acquiescence to administrative interpretations of a statute in some 
situations, we have done so with extreme care.''). Thus, the agencies 
are concerned about continuing to rely on congressional acquiescence to 
their regulatory definitions, see, e.g., 2015 Rule TSD at 219-220, 
following SWANCC.
    The legislative history of the 1972 amendments, in fact, suggest 
that Congress may not have considered interstate waters and navigable 
waters to be two separate and distinct categories, and instead referred 
to terms in the pre-1972 statutory regime conjunctively as ``interstate 
navigable waters.'' S. Rep. No. 92-414, 92nd Cong. 1st Sess., at 2 
(Oct. 28, 1971) (``Each State was required by the 1965 Act to develop 
standards for water quality within its boundaries. These standards were 
to be applied to all interstate navigable waters flowing through the 
State; intrastate waters were not included.'') (emphasis added); id. at 
4 (``The setting of water quality standards for interstate navigable 
waters . . . . is the keystone of the present program for control of 
water pollution'') (emphasis added); id.

[[Page 4172]]

(``The States have first responsibility for enforcement of their 
standards. When approved by the [EPA], however, the standards for 
interstate navigable waters become Federal-State standards.'') 
(emphasis added). In 1976, the Supreme Court shared the same view of 
the pre-1972 statutory scheme: ``Before it was amended in 1972, the 
Federal Water Pollution Control Act employed ambient water quality 
standards specifying acceptable levels of pollution in a State's 
interstate navigable waters as the primary mechanism in its program for 
the control of water pollution.'' EPA v. California, 426 U.S. 200, 202 
(1976) (emphasis added). This history suggests at a minimum that the 
section 303(a) provision relating to existing water quality standards 
for ``interstate waters'' may be referring to ``interstate navigable 
waters,'' not interstate waters more broadly, at least with respect to 
continuing federal enforcement authority over the pre-existing 
standards.
    Neither Supreme Court case historically relied on by the agencies, 
as discussed in the 2015 Rule TSD, addressed the specific question of 
whether interstate waters and navigable waters are separate and 
distinct categories of jurisdictional waters under the CWA. They 
instead addressed interstate water pollution generally, and the water 
at issue in those cases was Lake Michigan, an interstate navigable-in-
fact water. The 1981 decision, however, did recognize that the 1972 
amendments ``were viewed by Congress as a `total restructuring' and 
`complete rewriting' of the existing water pollution legislation 
considered in that case. Milwaukee, 451 U.S. at 317 (citing legislative 
history of the 1972 CWA amendments). This would support the notion that 
prior iterations of the statute, referring to both interstate waters 
and navigable waters, were replaced with a completely new program in 
1972, not that certain aspects of that program continued through 
congressional acquiescence of a later regulatory determination.
    The agencies therefore propose to eliminate ``interstate waters'' 
as a separate category of ``waters of the United States.'' Nothing in 
the legislative history of the 1972 CWA amendments ``signifies that 
Congress intended to exert anything more than its commerce power over 
navigation.'' SWANCC, 531 U.S. at 168 n.3. By proposing to eliminate a 
separate category for interstate waters, the proposed rule adheres to 
the agencies' legal principles discussed in Section II by including 
within the definition of ``waters of the United States'' traditional 
navigable waters, the territorial seas, and waters subject to the ebb 
and flow of the tide; tributaries to such waters; certain ditches that 
operate more like traditional navigable waters or were excavated in 
tributaries or adjacent wetlands; certain lakes and ponds; impoundments 
of otherwise jurisdiction waters; and wetlands adjacent to 
jurisdictional waters. Because the agencies' authority flows from 
Congress' use of the term ``navigable waters'' in the CWA, the agencies 
lack authority to regulate waters untethered from that term. Therefore, 
those interstate waters that would satisfy the definitions in this 
proposed rule would be jurisdictional; interstate waters without any 
connection to traditional navigable waters would be more appropriately 
regulated by the States and Tribes under their sovereign authorities.
    The agencies recognize that this proposal marks a shift away from 
prior agency positions. In doing so, however, the agencies anticipate 
that most waters that would be deemed jurisdictional under the existing 
regulatory definition from the 1980s would likely remain jurisdictional 
under this proposal as they would likely fall within the proposed 
traditional navigable waters category or one of the other proposed 
categories, such as tributaries or lakes and ponds. The agencies note 
that this proposal likely would reduce the number of interstate waters 
that would be jurisdictional under the 2015 Rule given that rule's 
broad interpretation of the term ``neighboring'' within its 
``adjacent'' definition and its inclusion of ephemeral streams and 
related features meeting its ``tributary'' definition. The agencies, 
however, are not aware of any database that identifies the 
jurisdictional status of interstate waters based solely on the fact 
that they cross state lines or any other resource that would identify 
these waters and therefore lack the analytical ability to perform a 
comparative analysis with precision.
3. What are specific issues upon which the agencies are seeking 
comment?
    The agencies welcome comment on this proposed change, including the 
rationale for and against having interstate waters as a separate 
jurisdictional category. Alternatively, the agencies seek comment on an 
approach that would retain interstate waters as a separate category, 
reflecting longstanding agency practice. In the event the agencies were 
to pursue that alternate approach, the agencies solicit comment on 
which waters should remain jurisdictional and on what basis, and 
whether the term ``interstate'' should be interpreted as crossing 
between States, between States and tribal lands, between States and/or 
tribal lands and foreign countries, or other formulations. Finally, if 
a commenter believes that the agencies have in the past asserted 
jurisdiction over waters based solely on the fact that such waters were 
interstate and otherwise not connected to a traditional navigable 
water, the agencies solicit examples of such jurisdictional 
determinations or other available data that may allow the agencies to 
further analyze the differences between the 1986 and 2015 rules and 
this proposed rule.

C. Impoundments

    The agencies do not propose to make any changes to the impoundment 
category of ``waters of the United States'' as it existed in the 1986 
regulations. Impoundments have historically been determined by the 
agencies to be jurisdictional because impounding a ``water of the 
United States'' generally does not change the water body's status as a 
``water of the United States.'' See, e.g., S. D. Warren Co. v. Maine 
Board of Environmental Protection, 547 U.S. 370, 379 n.5 (2006) 
(``[N]or can we agree that one can denationalize national waters by 
exerting private control over them.''). Under this proposal, alteration 
of a ``water of the United States'' by impounding it would not change 
the water's jurisdictional status, consistent with longstanding agency 
practice, unless jurisdiction has been affirmatively relinquished.
    Most impoundments do not cut off a connection between upstream 
tributaries and a downstream traditional navigable water or territorial 
sea. As a result, the agencies would consider tributaries upstream of 
an impoundment to be tributaries to downstream jurisdictional waters 
even where the impoundment might impede the flow of water. Impoundments 
therefore may serve as one of the waters through which tributaries flow 
to a traditional navigable water or territorial sea. However, where 
discharge of dredged or fill material into a ``water of the United 
States'' transforms a water body into upland through a section 404 
permitting action, the water would no longer be jurisdictional, 
consistent with longstanding agency practice.
    During the agencies' pre-proposal outreach, most commenters 
supported a policy under which impoundments of waters of the United 
States remain jurisdictional, while some commenters argued that 
impoundments that do not remain hydrologically connected to a 
traditional navigable water should not

[[Page 4173]]

be jurisdictional. The agencies welcome comment on whether impoundments 
are needed as a separate category of ``waters of the United States,'' 
or whether the other categories of waters in this proposed rule 
effectively incorporate the impoundment of other jurisdictional waters, 
such as the lakes and ponds category. The agencies also seek comment on 
whether there are existing jurisdictional impoundments that would not 
be found jurisdictional under an alternate approach that would remove 
impoundments as a separate category of ``waters of the United States.'' 
The agencies also welcome comment on whether certain categories of 
impoundments should not be jurisdictional, such as certain types of 
impoundments that release water downstream only very infrequently or 
impede flow downstream such that the flow is less than intermittent. An 
impounded wetland frequently becomes a pond, and the agencies solicit 
comment as to whether that pond should remain jurisdictional even if, 
for example, it does not meet the elements of the lakes and ponds 
category under paragraph (a)(4) in this proposed rule, such as 
contributing perennial or intermittent flow to an (a)(1) water. The 
agencies solicit comment on these and any other aspects of the proposed 
impoundment category.

D. Tributaries

1. What are the agencies proposing?
    In this proposed rule, the agencies would retain tributaries as a 
category of jurisdictional waters subject to CWA jurisdiction. This 
proposed rule defines ``tributary'' to mean a river, stream, or similar 
naturally occurring surface water channel that contributes perennial or 
intermittent flow to a traditional navigable water or territorial sea 
in a typical year either directly or indirectly through other 
jurisdictional waters, such as other tributaries, impoundments, and 
adjacent wetlands or through water features identified in paragraph (b) 
of this proposal so long as those water features convey perennial or 
intermittent flow downstream. Excluded waters and features in this 
proposal are not tributaries, but certain excluded waters and features 
may convey perennial or intermittent flow from a tributary to 
traditional navigable waters or the territorial seas. For example, if a 
tributary flows into an excluded ditch or a waste treatment system and 
those excluded features convey perennial or intermittent flow to a 
tributary downstream, the tributary remains a jurisdictional tributary 
upstream and downstream of the excluded feature. However, certain 
excluded waters and features are incapable of providing perennial or 
intermittent flow as defined in this proposal (e.g., ephemeral 
features) and therefore break jurisdiction upstream of the excluded 
feature. Under the proposed definition, a tributary does not lose its 
status as a jurisdictional tributary if it flows through a culvert, 
dam, or other similar artificial break or through a debris pile, 
boulder field, or similar natural break so long as the artificial or 
natural break conveys perennial or intermittent flow to a tributary or 
other jurisdictional water at the downstream end of the break. The 
alteration or relocation of a tributary would not modify its status as 
a jurisdictional tributary as long as it continues to satisfy the 
elements of the tributary definition.
    Regardless of the name they are given locally (e.g., creek, bayou, 
branch, brook, run, etc.), or their size (e.g., discharge volume, 
width, depth, stream order, etc.), waters that meet the definition of 
``tributary'' would be jurisdictional under this proposed rule. 
However, tributaries as defined in this proposal do not include surface 
features that flow only in direct response to precipitation, such as 
ephemeral flows, dry washes, arroyos, and similar features. These 
features lack the required perennial or intermittent flow regimes to 
satisfy the tributary definition under this proposal and therefore 
would not be jurisdictional.
    Though ``perennial,'' ``intermittent,'' and ``ephemeral'' are 
commonly used scientific terms, the agencies are proposing to provide 
definitions of these terms for purposes of CWA jurisdiction to ensure 
that the regulation is clear. The agencies propose to define the term 
``perennial'' to mean surface water flowing continuously year-round 
during a typical year. The proposed definition of ``intermittent'' is 
surface water flowing continuously during certain times of a typical 
year, not merely in direct response to precipitation, but when the 
groundwater table is elevated, for example, or when snowpack melts. 
Continuous surface flow during certain times of the year may occur 
seasonally such as in the spring when evapotranspiration is low and the 
groundwater table is elevated. Under these conditions, the groundwater 
table intersects the channel bed and groundwater provides continuous 
baseflow for weeks or months at a time even when it is not raining or 
has not very recently rained. The term ``snowpack'' in this definition 
is proposed as ``layers of snow that accumulate over extended periods 
of time in certain geographic regions and high altitudes (e.g., in 
northern climes and mountainous regions).'' Melting snowpack can be the 
sole or primary source of perennial or intermittent flow in 
tributaries. The agencies recognize that perennial or intermittent flow 
in certain mountain streams, for example, may result primarily from 
melting snowpack, not groundwater contributions to the channel.
    The phrase ``certain times of a typical year'' is intended to 
include extended periods of predictable, continuous, seasonal surface 
flow occurring in the same geographic feature year after year. The 
agencies are not proposing a specific duration (e.g., the number days, 
weeks, or months) of surface flow that constitutes intermittent flow as 
the agencies believe the time period that encompasses intermittent flow 
can vary widely across the country based upon climate, hydrology, 
topography, soils, and other conditions. ``Typical year'' is defined in 
the proposed rule to mean within the normal range of precipitation over 
a rolling thirty-year period for a particular geographic area. Under 
this proposed definition, a typical year would generally not include 
times of drought or extreme flooding. The term ``ephemeral'' in the 
proposal means surface water flowing or pooling only in direct response 
to precipitation, such as rain or snow fall. The agencies intend to 
distinguish flow resulting from snow fall from sustained flow resulting 
from melting snowpack in these definitions.
    Under the proposed rule a tributary must contribute perennial or 
intermittent flow to a traditional navigable water or territorial sea 
in typical year. Perennial or intermittent flow would require some form 
of discrete and confined flow (as opposed to diffuse overland flow) 
forming geographic features such as rivers, streams, or similar 
naturally occurring surface water channels. A tributary may contribute 
perennial or intermittent flow to downstream traditional navigable 
waters through, for example, lakes, impoundments, adjacent wetlands, or 
other tributaries. Under the proposed rule, when a tributary flows 
through a wetland and into another tributary (sometimes called a ``run-
of-stream'' wetland), the tributary would remain jurisdictional even 
though it may be difficult to identify channelized flow through the 
wetland. Similarly, such a wetland would be considered ``adjacent'' and 
thus jurisdictional under this proposal given the wetland abuts (i.e., 
touches at a point in this case) the tributary. In the case of a 
perennial or intermittent stream which flows through ditches excluded 
from this proposed definition of ``waters of the United

[[Page 4174]]

States,'' the non-jurisdictional ditches would not sever jurisdiction 
under the proposed rule as long as the ditches convey perennial or 
intermittent flow to tributaries or other jurisdictional waters at the 
downstream end of the ditch. However, a perennial or intermittent 
stream that flows into a non-jurisdictional ephemeral feature would not 
meet the definition of ``tributary'' if the perennial or intermittent 
flow does not reach a traditional navigable water or territorial sea; 
the ephemeral feature would sever jurisdiction for such perennial and 
intermittent streams as it does not convey surface water year-round or 
continuously for extended periods of time to a traditional navigable 
water or territorial sea.
    Under the proposed rule, tributaries could have certain natural 
breaks (such as debris piles, boulder fields, or subterranean rivers) 
or man-made breaks (such as bridges, culverts, pipes, or dams) and 
remain a tributary. A tributary does not lose its status as a tributary 
according to this proposal if it flows through a natural or man-made 
break so long as the break conveys perennial or intermittent flow to a 
tributary or other jurisdictional water at the downstream end of the 
break. To implement the proposed tributary definition, the agencies 
would consider the upstream extent of a tributary to be the point at 
which the feature ceases to contribute perennial or intermittent flow 
to a traditional navigable water or territorial sea.
    The alteration or relocation of a tributary would not modify its 
status under the proposed definition of tributary as long as it 
continues to satisfy the elements of the definition. The agencies' 
longstanding interpretation of the CWA is that tributaries that are 
modified waters are jurisdictional, and the agencies are not proposing 
to change this interpretation. If a tributary is channelized, its bed 
and/or banks are altered in some way, or it is re-routed or its flow 
regime is modified, then it would remain jurisdictional under the 
proposed rule as long as it continues to meet the definition of 
``tributary.'' For example, streams that have been channelized with 
hardened banks or otherwise modified may still meet the definition of 
``tributary'' under the proposal.
2. Why are the agencies proposing this approach?
    The agencies' proposed definition of ``tributary'' reflects the 
authority granted by Congress to regulate navigable waters, the 
interconnected nature of the tributary system, as well as the ordinary 
meaning of the term ``waters,'' an adherence to constitutional and 
statutory authority regarding the role of the Federal government and 
limits on its authority to regulate the use of land and waters within 
State and tribal boundaries, and the agencies' goal to establish a 
clear and easily implementable definition. In the proposed definition 
of ``tributary,'' the agencies would set boundaries to the scope of the 
regulation to ensure it is consistent with the role of the Federal 
government under the Constitution and the CWA. As the Supreme Court 
recognizes, States traditionally exercise ``primary power over land and 
water use,'' SWANCC, 531 U.S. at 174. The Federal government should 
avoid pressing against the outer limits of its authority when doing so 
would infringe upon the traditional rights and responsibilities of 
States to manage their own waters. See SWANCC, 531 U.S. at 172-73 and 
supra Section III.A.
    Limiting the scope of the proposed ``tributary'' definition to 
perennial or intermittent fixed waterbodies that contribute flow to 
traditional navigable waters or the territorial seas, including through 
other jurisdictional waters and through certain excluded waters and 
features, would also provide clear and predictable jurisdictional 
boundaries to guide the agencies and the regulated community. By 
proposing to define perennial and intermittent tributaries of 
traditional navigable waters as jurisdictional and ephemeral features 
as non-jurisdictional, the agencies seek to balance Congress' intent to 
interpret the term ``navigable waters'' broadly, see, e.g., S. Conf. 
Rep. No. 92-1236, p. 144 (1972), with the notion that nothing in the 
legislative history of the Act ``signifies that Congress intended to 
exert anything more than its commerce power over navigation.'' SWANCC, 
531 U.S. at 168 n.3. The agencies believe that limiting jurisdiction to 
perennial and intermittent streams most appropriately balances the 
Federal government's interest in regulation the nation's navigable 
waters while respecting State land use authority over features that are 
only episodically wet following precipitation events.
    By including rivers and streams that contribute perennial or 
intermittent flow to traditional navigable waters or the territorial 
seas, and excluding ephemeral features, the agencies are proposing a 
definition of ``tributary'' that is consistent with the Rapanos 
plurality's position that `` `the waters of the United States' include 
only relatively permanent, standing, or flowing bodies of waters'' . . 
. ``as opposed to ordinarily dry channels'' . . . ``or ephemeral flows 
of water.'' Id. at 732-33 see also id. at 736 n.7 (``[R]elatively 
continuous flow is a necessary condition for qualification as a 
`water,' not an adequate condition'' (original emphasis)). Perennial 
waters, by definition, are permanent. And while the plurality did note 
that ``waters of the United States'' do not include ``ordinarily dry 
channels through which water occasionally or intermittently flows,'' 
id. at 733, the plurality would ``not necessarily exclude seasonal 
rivers, which contain continuous flow during some months of the year 
but no flow during dry months.'' Id. at 732 n.5 (original emphasis); 
compare id. at 770 (Kennedy, J., concurring) (``an intermittent flow 
can constitute a stream . . . while it is flowing . . . [i]t follows 
that the Corps can reasonably interpret the Act to cover the paths of 
such impermanent streams''). Intermittent waters may occur seasonally, 
for example, during times when groundwater tables are elevated or when 
snowpack runoff produces relatively permanent flow, returning on an 
annual basis in known, fixed geographic locations.
    Pre-proposal commenters provided various definitions for perennial 
flow, including streams which flow continually or which flow for twelve 
months of the year other than times of extreme drought. Several 
commenters recommended that the agencies only include tributaries with 
perennial flow, suggesting that they would broadly protect water 
quality and provide a clear line regarding federal jurisdiction without 
being overly expansive. Some stakeholders recommended the agencies 
include waters that receive water from a spring or other surface 
source, such as melting snow. Others recommended including ephemeral 
features and washes in the definition of ``tributary'' and relying on 
physical features of a stream (e.g., bed and banks and ordinary high 
water mark) regardless of flow. Many pre-proposal commenters 
recommended the agencies propose a bright line to distinguish between 
intermittent and ephemeral flow regimes. A few commenters suggested 
specific timeframes for the flow requirement to be a tributary, such as 
185 days, with most recommending three continuous months of the year. 
Several States submitted comments during the Federalism consultations 
recommending a regionalized approach to flow regime, whereby the 
agencies could provide regional manuals with examples of jurisdictional 
flow regimes in various parts of the country or some other mechanism to 
recognize regional differences in waters. The agencies have

[[Page 4175]]

considered these comments and have crafted proposed regulatory 
definitions designed to address a broad array of interests, while 
adhering to the legal principles articulated in this notice and while 
providing a predictable, implementable regulatory framework.
    By proposing to define ``tributary'' as rivers and streams that 
contribute perennial or intermittent flow to traditional navigable 
waters or the territorial seas, the agencies would establish that a 
mere hydrologic connection cannot provide the basis for CWA 
jurisdiction; the bodies of water must be ``geographical features'' 
(i.e., rivers and streams) that are ``relatively permanent'' (i.e., 
perennial or intermittent) and that contribute perennial or 
intermittent flow to a traditional navigable water. Id. at 732. This 
proposed requirement is informed by Rapanos wherein the plurality 
determined that the phrase ``the waters of the United States'' ``cannot 
bear the expansive meaning that the Corps would give it,'' id. at 732, 
and challenged the notion that ``even the most insubstantial hydrologic 
connection may be held to constitute a `significant nexus.' '' Id. at 
728. Similarly, Justice Kennedy noted, ``mere hydrologic connection 
should not suffice in all cases; the connection may be too 
insubstantial for the hydrologic linkage to establish the required 
nexus with navigable waters as traditionally understood.'' Id. at 784-
85. On the other hand, Justice Kennedy challenged the plurality's 
requirement that a channel contain ``continuous flow,'' asserting 
``[t]he merest trickle, if continuous, would count as a `water' subject 
to federal regulation'' under the plurality's test.'' Id. at 769. The 
proposed requirement that a tributary be connected to a traditional 
navigable water by perennial or intermittent flow also reflects the 
plurality's description of a `` `wate[r] of the United States' '' as 
``i.e., a relatively permanent body of water connected to traditional 
interstate navigable waters.'' Id. at 742.
    The agencies acknowledge the proposed tributary definition contains 
no flow volume requirement, but only a flow duration requirement of 
perennial or intermittent flow. The agencies believe establishing a 
specific flow volume requirement for all tributaries would be 
inappropriate given the wide spatial and temporal variability of flow 
volume in rivers and streams across the country. While the proposed 
definition may in certain instances assert jurisdiction over bodies of 
water contributing ``the merest trickle'' to a traditional navigable 
water, the agencies believe that regardless of flow volume, such bodies 
are `` `waters' in the ordinary sense of containing a relatively 
permanent flow.'' Id. at 757. As described in the agencies' Rapanos 
Guidance, the agencies currently conduct a significant nexus analysis 
for certain types of waters referred to as ``non-relatively permanent 
waters,'' which includes ephemeral features and some intermittent 
streams. See Rapanos Guidance at 7 (`` `[R]elatively permanent' waters 
do not include ephemeral tributaries which flow only in response to 
precipitation and intermittent streams which do not typically flow 
year-round or have continuous flow at least seasonally. However, CWA 
jurisdiction over these waters will be evaluated under the significant 
nexus standard[.]''). This proposed definition of ``tributary'' would 
replace existing procedures that may depend on case-specific 
``significant nexus'' analyses of the relationship between a particular 
stream with downstream waters. The agencies are proposing to eliminate 
this case-specific ``significant nexus'' analysis by providing a clear 
definition of ``tributary'' that is easier to implement. Indeed, 
Justice Kennedy's ``significant nexus'' test for wetlands adjacent to 
nonnavigable tributaries was only needed ``absent more specific 
regulations,'' Rapanos, 547 U.S. at 782, because ``the breadth of [the 
Corps' existing tributary] standard'' . . . ``seems to leave wide room 
for regulation of drains, ditches, and streams remote from any 
navigable-in-fact water and carrying only minor water volumes towards 
it'' and thus ``precludes its adoption as the determinative measure of 
whether adjacent wetlands are likely to play an important role in the 
integrity of an aquatic system comprising navigable waters as 
traditionally understood.'' Id. at 781. In light of the ``more specific 
[tributary] regulations'' proposed today, the agencies propose to 
eliminate the case-specific significant nexus review through 
categorical treatment of all tributaries, as defined by this proposal, 
as ``waters of the United States.'' In doing so, the agencies believe 
they avoid interpretation of the CWA that raise significant 
constitutional questions. See Rapanos 547 U.S. at 738 (plurality) 
(``Even if the term `the waters of the United States' were ambiguous as 
applied to channels that sometimes host ephemeral flows of water (which 
it is not), we would expect a clearer statement from Congress to 
authorize an agency theory of jurisdiction that presses the envelope of 
constitutional validity.'').
    The agencies recognize that this is a departure from prior 
positions of the Federal government. The agencies also recognize that 
some courts apply the significant nexus standard articulated in Justice 
Kennedy's opinion as the exclusive test of CWA jurisdiction over 
certain waters. But the agencies believe that this proposed definition 
incorporates the important aspects of Justice Kennedy's opinion, 
together with the plurality, to craft a clear and implementable 
definition that stays within our statutory and constitutional mandates. 
The agencies request comment on this interpretation, and on whether the 
agencies have previously overread Justice Kennedy's opinion to mandate 
the significant nexus test outside the actual holding of Justice 
Kennedy's opinion, which was limited to the wetlands at issue in that 
case.
    The proposed definition of ``waters of the United States'' is a 
legal and policy decision informed by the statute, its legislative 
history, Supreme Court interpretations, and the agencies' respect for 
the traditional power of States to regulate their land and water 
resources. This proposed definition is also informed by the science. As 
part of the rulemaking effort leading up to the promulgation of the 
2015 Rule, the EPA's Office of Research and Development developed a 
report entitled ``Connectivity of Streams and Wetlands to Downstream 
Waters: A Review and Synthesis of the Scientific Evidence'' 
(``Connectivity Report'').\26\ The report reviews more than 1,200 peer-
reviewed publications and summarizes the current scientific 
understanding about the connectivity and mechanisms by which streams 
and wetlands affect the physical, chemical, and biological integrity of 
downstream waters. Before the Connectivity Report was finalized, the 
EPA released a draft version of it in September 2013 (``Draft 
Connectivity Report'').\27\ The Draft Connectivity Report was reviewed 
by the EPA's Science Advisory Board (``SAB''), a public advisory group 
tasked with providing scientific information and advice to EPA. In 
October 2014, the SAB completed its peer review (``SAB Review'') of the 
Draft Connectivity Report. While the SAB found that ``[t]he literature 
review provides strong

[[Page 4176]]

scientific support for the conclusion that ephemeral, intermittent, and 
perennial streams exert a strong influence on the character and 
functioning of downstream waters and that tributary streams are 
connected to downstream waters,'' at the same time the SAB stressed 
that ``the EPA should recognize that there is a gradient of 
connectivity.'' \28\ The SAB recommended that ``the interpretation of 
connectivity be revised to reflect a gradient approach that recognizes 
variation in the frequency, duration, magnitude, predictability, and 
consequences of physical, chemical, and biological connections.'' \29\
---------------------------------------------------------------------------

    \26\ U.S. EPA. Connectivity of Streams and Wetlands to 
Downstream Waters: A Review and Synthesis of the Scientific Evidence 
(Final Report). U.S. Environmental Protection Agency, Washington, 
DC, EPA/600/R-14/475F, 2015.
    \27\ U.S. EPA. Connectivity of Streams and Wetlands to 
Downstream Waters: A Review and Synthesis of the Scientific Evidence 
(External Review Draft). U.S. Environmental Protection Agency, 
Washington, DC, EPA/600/R11/098B, September 2013.
    \28\ Letter to Gina McCarthy. October 17, 2014. SAB Review of 
the Draft EPA Report Connectivity of Streams and Wetlands to 
Downstream Waters: A Review and Synthesis of the Scientific 
Evidence. Page 3.
    \29\ Id. at 2 (emphasis added).
---------------------------------------------------------------------------

    To describe the ``connectivity gradient'' and the probability that 
impacts occurring along the gradient will be transmitted downstream, 
the SAB developed a figure as part of its review of the Draft 
Connectivity Report. See SAB Review fig. 3 at 54. The figure 
illustrates the connectivity gradient and potential consequences 
between perennial, intermittent, and ephemeral streams and downstream 
waters and depicts a decreased ``probability that changes . . . . will 
be transmitted to downstream waters'' at flow regimes less than 
perennial and intermittent. In other words, the SAB found perennial and 
intermittent streams have a greater probability to impact downstream 
waters compared to ephemeral streams. While the SAB stated that ``at 
sufficiently large spatial and temporal scales, all waters and wetlands 
are connected,'' it found that ``[m]ore important are the degree of 
connection (e.g., frequency, magnitude, timing, duration) and the 
extent to which those connections affect the chemical, physical, and 
biological integrity of downstream waters.'' Id. at 17.
    At the same time, the SAB recognized that ``[t]he Report is a 
science, not policy, document that was written to summarize the current 
understanding of connectivity or isolation of streams and wetlands 
relative to large water bodies such as rivers, lakes, estuaries, and 
oceans.'' Id. at 2. ``The SAB also recommended that the agencies 
clarify in the preamble to the final rule that `significant nexus' is a 
legal term, not a scientific one.'' 80 FR 37065. And in issuing the 
2015 Rule, the agencies stated, ``the science does not provide a 
precise point along the continuum at which waters provide only 
speculative or insubstantial functions to downstream waters.'' Id. at 
37090. Thus, the agencies use the Connectivity Report to inform certain 
aspects of this proposed definition of ``waters of the United States,'' 
such as recognizing the ``connectivity gradient'' and potential 
consequences between perennial, intermittent, and ephemeral streams and 
downstream waters within a tributary system, but acknowledge that 
science cannot be used to draw the line between Federal and State 
waters, as those are legal distinctions that have been established 
within the overall framework and construct of the CWA.
    This proposed tributary definition identifies a category of 
perennial and intermittent rivers and streams that due to their 
relatively permanent flow regime and their contribution of flow to 
navigable waters should be federally regulated. Through this proposed 
definition of ``tributary,'' the agencies would also acknowledge the 
policy direction from Congress to ``recognize, preserve, and protect 
the primary responsibilities and rights of States to prevent, reduce, 
and eliminate pollution [and] to plan for the development and use 
(including restoration, preservation, and enhancement) of land and 
water resources . . . .'' 33 U.S.C. 1251(b); see also Rapanos, 547 U.S. 
at 737 (Scalia, J., plurality). The proposed approach to defining 
``tributary'' is also intended to limit federal jurisdiction over 
ephemeral flows and other ordinarily dry land features in order to 
``preserve, and protect the primary responsibilities and rights of 
States to . . . plan the development and use . . . of land . . . 
resources.'' See id. at 738 (Scalia, J., plurality) (``Regulation of 
land use, as through the issuance of the development permits sought by 
petitioners in both [Rapanos and Carabell], is a quintessential state 
and local power.''). With the proposed definition, the agencies seek to 
avoid ``impairing or in any manner affecting any right or jurisdiction 
of the States with respect to waters (including boundary waters) of 
such States.'' 33 U.S.C. 1370. In addition, the agencies are drawing a 
line between intermittent and ephemeral flows for administrative 
efficiency as they balance the law, science, and stakeholder feedback. 
Therefore, ephemeral features, such as dry washes and arroyos, that 
lack the required perennial or intermittent flow regime necessary to 
satisfy the tributary definition under this proposed rule are excluded 
from the definition. However, an ephemeral feature may constitute a 
point source that discharges pollutants to a ``water of the United 
States.'' See Rapanos, 547 U.S. at 743-44 (Scalia, J., plurality). 
States and Tribes may also address ephemeral features as ``waters of 
the State'' or ``waters of the Tribe'' under their own laws to the 
extent they deem appropriate.
3. How might the agencies implement this approach?
    The agencies and our co-regulators have significant experience 
identifying flow regime in perennial and intermittent waters and expect 
that landowners will have also sufficient knowledge to understand how 
water moves throughout their properties. Moreover, the technical 
consultants that support the permitting and development community will 
be familiar with the basic concept of perennial and intermittent flow 
regimes. The agencies, however, have identified several potential 
implementation methods and tools that could be used to identify and 
distinguish perennial and intermittent flow regimes from ephemeral flow 
regimes as defined in this proposal. In conjunction with a field visit, 
such methods could include remote and field-based tools, such as visual 
observations, photographs, data collection on flow, trapezoidal flumes 
and pressure transducers for measuring surface flow and comparing that 
to rainfall, StreamStats by the U.S. Geological Survey (USGS) 
(available at https://streamstats.usgs.gov/ss/), Natural Resources 
Conservation Service (NRCS) hydrologic tools and soil maps, desktop 
tools that provide for the hydrologic estimation of a discharge 
sufficient to generate intermittent or perennial flow, such as a 
regional regression analysis or hydrologic modeling, USGS topographic 
data, or modeling tools using drainage area, precipitation data, 
climate, topography, land use, vegetation cover, geology, and other 
publicly available information. There may be other methods which could 
be researched and developed by the agencies over time, including the 
identification of field indicators, such as vegetation and 
macroinvertebrates, which could be regionalized (for example, the 
Streamflow Duration Assessment Method for the Pacific Northwest, at 
http://www.epa.gov/measurements/streamflow-duration-assessment-method-pacific-northwest, which could be expanded to other regions).
    During the agencies' Federalism consultation, a few States 
recommended the agencies identify a variety of methods which may be 
employed to identify flow regimes, and that such methods involve tools 
readily available to a typical landowner. Some other States recommended 
not using the

[[Page 4177]]

National Hydrography Dataset (NHD) because they commented that it has 
been shown to overestimate flow in certain areas. Some States 
recommended using local flow data collected and maps developed by 
government agencies, where available. Climatic conditions and 
precipitation data are important elements to consider when determining 
flow regime given the dependent relationship in many systems between 
surface flow and groundwater tables. For example, observing flow 
directly after a large rainfall may not be a good indicator of a 
stream's typical flow regime, while observing flow in a stream in the 
middle of summer in the arid West when no recent rainfall has occurred 
may be a good indication that it flows more than ephemerally. Often 
multiple data points and multiple sources of information could be used 
to determine flow regime.
    The same tools discussed above can also be helpful in establishing 
the presence of a tributary. For example, where a USGS topographic map 
and/or NHD data display a ``blue line stream,'' there is an indication 
of a potential tributary. Combining this information with stream order 
can yield greater certainty. For example, higher order streams will 
generally be more likely to exhibit relatively permanent flow compared 
to lower order streams. This information will vary in validity in 
different parts of the country, so care would be taken to evaluate 
additional information prior to reasonably concluding a tributary is 
present. Supporting information, as well as field work, should also be 
used to conclude the presence of a tributary. Other reliable methods 
that can indicate existence of a tributary include stream gage data, 
elevation data, spillway height, historic water flow records, flood 
predictions, statistical evidence, and direct observation. Also, the 
agencies recognize that States may have specific, validated tools they 
employ to identify perennial or intermittent streams or flow regimes 
and are soliciting comment on those approaches which may be useful for 
application in this proposed rule. The agencies also solicit comment on 
other implementation tools available to determine the flow regime of a 
river or stream and its contribution of flow to a traditional navigable 
water.
    To determine whether the year in question is a ``typical year,'' 
the agencies presently use observed rainfall amount and compare it to 
tables developed by the Corps using data from the National Oceanic and 
Atmospheric Administration (NOAA). The agencies consider a year to be 
``typical'' when the observed rainfall from the previous three months 
falls within the 30th and 70th percentiles established by a 30-year 
rainfall average generated at NOAA weather stations. A typical year 
would generally not include times of drought or extreme floods. A 
rolling 30-year period would account for variability to provide a 
reliable indicator of the climate in a given geographic area without 
being confounded by a year or two of unusual climate data for the given 
area. The geographic area proposed to be used by the agencies would be 
on a watershed-scale basis to ensure specific climatic data are 
representative of the landscape in relation to the feature under 
consideration for meeting the tributary definition.
    Other potential data sources for obtaining relevant information to 
determine typical year could include one or several of the following: 
the Web-based Water-Budget Interactive Modeling Program (WebWIMP) for 
approximate dates of wet and dry seasons for any terrestrial location 
based on average monthly precipitation and estimated evapotranspiration 
(http://climate.geog.udel.edu/~wimp/); WETS tables (or similar tools) 
which are provided by the NRCS National Water and Climate Center 
(http://www.wcc.nrcs.usda.gov/climate/wetlands.html) and are calculated 
from long-term (30-year) weather records gathered at National Weather 
Service; meteorological stations; or by examining trends in drought 
indices, such as the Palmer Drought Severity Index (PDSI) (Sprecher and 
Warne 2000), where time-series plots of PDSI values by month or year 
are available from the National Climatic Data Center (http://www.ncdc.noaa.gov/oa/climate/onlineprod/drought/xmgr.html#ds). The 
agencies are not proposing to codify specific tools or resources in the 
regulation to determine a ``typical year.''
    Sources of information on ``snowpack'' can be found in the NOAA 
national snow analyses maps (https://www.nohrsc.noaa.gov/nsa/), Natural 
Resources Conservation Service sources (https://www.wcc.nrcs.usda.gov/snow/), or by using hydrographs of subject locations as a potential 
guide to alert the regulated public and regulators as to which regions 
of the country have to consider snowpack scenarios. In these regions, 
for example, a hydrograph could indicate a large increase in discharge 
volume due to the late spring/early summer thaws of melting snowpack. 
Such indications are a regular, predictable, seasonal occurrence of 
flow. The large water contribution source for those northern and 
mountainous geographic regions which do not have significant elevation 
changes but which do have a consistent, predictable snowfall that 
accumulates on the ground for extended periods of time would be covered 
in a proposed definition of ``snowpack.''
4. What are specific issues upon which the agencies are seeking 
comment?
    While the public may comment on all aspects of the agencies' 
proposed rule, the agencies have identified several specific areas 
related to the proposed tributary definition for which they seek 
comment. As a threshold matter, the agencies solicit comment on their 
interpretation of the Rapanos opinions and whether the significant 
nexus standard, articulated by a single justice, must be a mandatory 
component of any future definition of ``waters of the United States.'' 
Or, may the agencies apply the principles and rationale of the 
plurality and concurring opinions to craft a new standard established 
by rule?
    The agencies also solicit comment on whether the definition of 
``tributary'' should be limited to perennial waters only. The agencies 
also request comment whether the definition of ``tributary'' as 
proposed should indicate that the flow originate from a particular 
source, such as a requirement for groundwater interface, snowpack, or 
lower stream orders that contribute flow. The agencies also solicit 
comment on how effluent-dependent streams (e.g., streams that flow 
year-round based on wastewater treatment plant discharges) should be 
treated under the tributary definition. As proposed, effluent-dependent 
streams would be included in the definition of ``tributary'' as long as 
they contribute perennial or intermittent flow to a traditional 
navigable water or territorial sea in a typical year.
    The agencies also solicit comment on whether the tributary 
definition should include streams that contribute less than 
intermittent flow to a traditional navigable water or territorial sea 
in a typical year. Additionally, the agencies request comment on 
whether less than intermittent flow in a channel breaks jurisdiction of 
upstream perennial or intermittent flow and under what conditions that 
may happen. The agencies recognize that the proposed definition may 
present a challenge for certain landowners upstream of an ephemeral 
feature. For example, landowners may find it difficult to determine 
whether there is a jurisdictional break downstream of a feature on 
their property. The agencies therefore solicit comment on this issue.

[[Page 4178]]

The agencies also seek comment on the proposed treatment of natural and 
man-made breaks regarding the jurisdictional status of upstream waters, 
including whether these features can convey perennial or intermittent 
flow to downstream jurisdictional waters. The agencies also seek 
comment on the jurisdictional status of the breaks themselves.
    The agencies are also soliciting comment on an alternate definition 
that would change the focus of the proposed definition from 
intermittent flow occurring during certain times of the year to 
``seasonal flow.'' Under this alternative definition, a tributary would 
be a river, stream, or similar naturally occurring surface water 
channel that contributes flow at least seasonally to a traditional 
navigable water or territorial sea in a typical year. The alternate 
definition could add that ``seasonal flow is predictable, continuous 
surface flow that generally occurs at the same time in a typical 
year.'' The agencies welcome comments on the concept of a ``seasonal'' 
flow regime, what that term may include, and how it may be implemented, 
including tools to identify ``seasonal'' flow.
    As an alternative to the proposed definition of ``intermittent,'' 
the agencies are soliciting comment on whether the term could instead 
mean ``water flowing continuously during certain times of a typical 
year as a result of melting snowpack or when the channel bed intersects 
the groundwater table.'' Although the identification of groundwater 
input is found in most definitions for intermittent flow,\30\ the 
agencies note that identifying whether the channel bed intersects the 
groundwater table may be challenging to accomplish in the field, that 
gathering the relevant data could be time consuming, and could require 
new tools and training of field staff and the regulated public. Some 
options for identifying whether groundwater is providing a source of 
water to the tributary may involve the installation of monitoring wells 
or staff gauges to identify the presence of the water table and/or to 
estimate the base flow using a hydrograph. Identifying the appropriate 
depth of installation for a monitoring well can be challenging, 
especially in the case of intermittent streams that have seasonally 
fluctuating water tables. Installing these devices in certain 
substrates, such as rocky substrates, can also be challenging. There 
may be other methods which could be researched and developed by the 
agencies over time, including the identification of field indicators, 
which could be regionalized, as well as the development of modeling 
tools. However, both of these methods (field indicators and modeling 
tools) would only provide an indication of groundwater generated base 
flow and would not directly measure its presence. The agencies are 
soliciting comment on whether these or other methods may be most 
appropriately used to identify groundwater in the field.
---------------------------------------------------------------------------

    \30\ See, e.g., 82 FR 2006 (Jan. 6, 2017) (Corps nationwide 
permit program); National Research Council. 2002. Riparian Areas: 
Functions and Strategies for Management. Washington, DC: The 
National Academies Press. https://doi.org/10.17226/10327.
---------------------------------------------------------------------------

    The agencies are also soliciting comment on whether the definition 
of ``intermittent'' should contain the requirement of continuous flow 
for a specific duration, such as ``at least one month of the calendar 
year,'' instead of the phrase ``during certain times of a typical 
year.'' See, e.g., 30 CFR 710.5 (definition of ``intermittent'' used in 
a U.S. Department of the Interior regulation). The agencies note that 
such an approach would provide for national consistency but may not 
offer a more regionalized implementation of intermittent tributaries as 
some States recommended (i.e., intermittent would be viewed the same 
across the country, from the arid West to the Southeast). Some pre-
proposal commenters recommended this approach to provide certainty for 
determining flow regime. The agencies are also soliciting comment on 
whether the seasonal continuous surface flow consideration (e.g., 
typically three months) from the Rapanos Guidance could be used as a 
definitional flow regime in the regulation. Rapanos Guidance at 6. 
Several commenters recommended this approach be used to define 
tributaries. The seasonal ``typically three month'' approach is current 
practice, subject to case-by-case analysis, and is therefore familiar 
to agency staff and the regulated public, but like a one-month 
limitation, it may not provide for regional variation in the 
implementation of flow regime.
    The agencies therefore seek comment as to whether the tributary 
definition should include specific flow characteristics (e.g., timing, 
duration, frequency, or magnitude), and if so, what flow values or 
ranges of values (including supporting rationale) would satisfy the 
tributary definition and what methods, tools, or data could be used to 
determine such values. Certain flow requirements might include, for 
example, an average annual flow volume of five or more cubic feet per 
second in a typical year and/or that a river or stream flow 
continuously for a certain number of days (e.g., 30, 60, or 90 days) in 
a typical year.
    The agencies are also soliciting comment on whether the concepts of 
bed and banks and ordinary high water mark should be added to the 
definition of tributary, and if so, how. Several commenters recommended 
including these characteristics in the proposed definition of 
``tributary,'' similar to the definition of tributary in the 2015 Rule, 
while others opposed the addition, stating that it would 
inappropriately result in regulation over certain waters that should 
not be jurisdictional under the CWA, such as ephemeral features.
    The lateral jurisdictional limit of a tributary currently is 
established by a tributary's ordinary high water mark. The agencies 
solicit comment on the usefulness of incorporating into the tributary 
definition the following sentence: ``the lateral extent of a tributary 
is established by its ordinary high water mark.'' The agencies note 
that the Corps has existing regulations at 33 CFR 328.4 regarding the 
limits of jurisdiction for categories of ``waters of the United 
States.'' The agencies solicit comment on including these Corps 
regulations in the EPA's regulations or simply cross-referencing the 
Corps regulations in EPA's to apply to the definition of ``waters of 
the United States.''
    The agencies are proposing to define a typical year as ``within the 
normal range of precipitation over a rolling 30-year period for a 
particular geographic area.'' The agencies solicit comment on whether 
it is necessary to define ``typical year'' given the agencies' 
understanding that it is a commonly understood term in field 
application. Alternatively, the agencies seek comment on whether they 
should provide additional details in the rule text about what 
constitutes a typical year or provide further guidance in a final 
preamble about appropriate tools for determining whether a year is 
``typical.'' Finally, the agencies solicit comment on alternative 
approaches in the rule text to convey that times of drought or extreme 
floods would not be a factor when determining if a river or stream 
meets the conditions of the definition of ``tributary.''
    The agencies are also soliciting comment on implementation methods 
and tools that could be used to identify and distinguish perennial and 
intermittent flow regimes from ephemeral flow regimes as defined in 
this proposal. As mentioned above, such tools could include field-based 
tools, such as visual observations, or remote desktop tools, such as 
aerial photos. The agencies are also soliciting comment on

[[Page 4179]]

the appropriate watershed scale for use in the geographic area as 
defined in a ``typical year'' of the proposed rule, for example, 
hydrologic units at the level of Hydrological Unit Code (HUC)-8s, HUC-
10s, or HUC-12s could be used. A broad geographic area may include 
multiple micro-climates and may not be representative of precipitation 
conditions on the ground for the subject tributary. The agencies are 
soliciting comment on other approaches to determine the geographic 
area.

E. Ditches

1. What are the agencies proposing?
    The agencies propose to add a new category to the definition of 
``waters of the United States'' to provide regulatory clarity and 
predictability regarding the regulation of ditches and similar 
artificial features. The regulatory status of ditches has long created 
confusion for farmers, ranchers, irrigation districts, municipalities, 
water supply and stormwater management agencies, and the transportation 
sector, among others. In an effort to reduce that confusion, the 
agencies propose to delineate the categories of ditches that would be 
``waters of the United States,'' and are proposing to exclude all other 
ditches from that definition.
    The agencies also propose to define ditches for purposes of this 
proposed rule as simply artificial channels used to convey water. 
Ditches perform a variety of functions including conveying irrigation 
water, draining water from farm fields, capturing runoff from roads, or 
use for transporting goods and services in interstate or foreign 
commerce, such as the Erie Canal and the Great Lakes Waterway. The 
status of ditches as ``point sources'' under the CWA, 33 U.S.C. 
1362(14), would not be affected by this proposed rule. One of the goals 
of this proposal is to address the confusion regarding whether ditches 
are point sources or ``waters of the United States'' more generally, 
and to provide clear categories for regulators and the regulated 
community for distinguishing between the two.
    The agencies propose to include ditches as ``waters of the United 
States'' if they (1) satisfy any of the conditions identified in 
paragraph (a)(1) of this proposed rule; (2) are ditches constructed in 
a tributary as defined in paragraph (c)(11) of the proposal as long as 
those ditches also satisfy the conditions of the tributary definition; 
or (3) are ditches constructed in an adjacent wetland as defined in 
paragraph (c)(1) of the proposal as long as those ditches also satisfy 
the conditions of the tributary definition. The agencies propose to 
exclude all other ditches from the definition of ``waters of the United 
States.'' Ditches not covered by this proposed category could still be 
regulated by States and Tribes and would be subject to CWA permitting 
if they meet the definition of ``point source'' in CWA section 502(14).
2. Why are the agencies proposing this approach?
    During the 1970s, the Corps interpreted its authorities under the 
CWA as not including drainage and irrigation ditches in the definition 
of ``waters of the United States.'' See, e.g., 40 FR 31320, 31321 (July 
25, 1975) (``Drainage and irrigation ditches have been excluded.''). 
The ditch exclusion was expressly stated in regulatory text in the 
Corps' 1977 regulations and clarified as applying to ditches excavated 
in dry land. 33 CFR 323.2(a)(3); 42 FR 37122, 37144 (July 19, 1977) 
(``manmade nontidal drainage and irrigation ditches excavated on dry 
land are not considered waters of the United States under this 
definition''). As the Corps explained in 1977: ``nontidal drainage and 
irrigation ditches that feed into navigable waters will not be 
considered `waters of the United States' under this definition. To the 
extent that these activities cause water quality problems, they will be 
handled under other programs of the FWPCA, including Section 208 and 
402.'' 42 FR at 37127 (July 19, 1977). Similar statements in proposed 
rules from the early 1980s confirmed this interpretation: ``man-made, 
non-tidal drainage and irrigation ditches excavated on dry land are not 
considered waters of the United States.'' 45 FR 62732, 62747 (September 
19, 1980); see also 48 FR 21466, 21474 (May 12, 1983) (``Waters of the 
United States do not include the following man-made waters: (1) Non-
tidal drainage and irrigation ditches excavated on dry land, (2) 
Irrigated areas which would revert to upland if the irrigation 
ceased.'').
    The general exclusion for non-tidal drainage and irrigation ditches 
excavated in dry land continued through 1986, although the Corps 
modified its earlier statements that year by noting in preamble text 
that ``we generally do not consider'' such features to be ``waters of 
the United States,'' and indicating that the agency would evaluate 
certain ditches on a case-by-case basis. 51 FR 41206, 41217 (November 
13, 1986).\31\ The Corps further clarified the regulation of ditches in 
its nationwide permit regulation in March 2000, stating that ``non-
tidal drainage ditches are waters of the United States if they extend 
the [ordinary high water mark] of an existing water of the United 
States.'' 65 FR 12818, 12823-24 (March 9, 2000). In other words, if 
flow or flooding from a jurisdictional non-tidal river or stream 
inundated an upland ditch, the agencies would assert jurisdiction over 
that upland ditch because the ordinary high water mark of the river or 
stream extends into the ditch, and the agencies would then assert 
jurisdiction over the entire reach of that ditch. Essentially, the 
agencies have found that a ditch becomes part of the tributary network 
because of the presence of the ordinary high water mark in the ditch.
---------------------------------------------------------------------------

    \31\ The Corps also moved the ditch exclusion from rule text to 
preamble language in 1986 but stated that this was not a substantive 
change and that jurisdiction was not expanded. 51 FR 41206, 41216-17 
(November 13, 1986).
---------------------------------------------------------------------------

    In the 2015 Rule, the agencies promulgated a definition of ``waters 
of the United States'' that expressly included man-made features such 
as ditches and canals in the definition of tributaries, but excluded 
ditches with ephemeral flow if those ditches are not a relocated 
tributary or were not constructed in a tributary. 80 FR 37105 (June 29, 
2015). That definition also excluded ditches with intermittent flow, as 
long as those ditches are not a relocated tributary, are not 
constructed in a tributary, or do not drain wetlands. Id. Ditches that 
do not contribute flow, either directly or through another ``water of 
the United States,'' are also excluded from the definition of ``waters 
of the United States'' under the 2015 Rule. Id.
    The agencies today propose to clarify the regulatory status of 
ditches in a manner that would be more consistent with the Corps' 
regulations following the 1972 and 1977 CWA amendments, with some 
modifications to provide a clear definition that also falls within 
scope of the agencies' authority under the CWA.
    When Congress enacted the 1972 amendments, it specifically included 
ditches and related artificial features as ``point sources,'' declaring 
them to be ``discernible, confined, and discrete conveyances . . . from 
which pollutants are or may be discharged.'' 33 U.S.C. 1362(16). 
Congress envisioned protecting the quality of the navigable waters, 
defined as ``waters of the United States'' at that time, by regulating 
the discharge of pollutants from conveyances like pipes, ditches, 
channels, tunnels and similar features into ``waters of the United 
States.'' Id. (defining ``discharge of pollutants'' as ``any addition 
of any pollutant to navigable waters from any point source''). The 
agencies today propose to

[[Page 4180]]

better demarcate navigable waters and point sources that can discharge 
pollutants into those waters, as established by Congress in 1972. See, 
e.g., Rapanos, 547 U.S. at 735-36 (Scalia, J., concurring) (``The 
definition of `discharge' would make little sense if the two categories 
were significantly overlapping''). To do so, the agencies evaluated the 
treatment of ditches in the CWA to discern whether Congress intended 
ditches to be point sources, navigable waters, or both. For example, 
Congress exempted the discharge of dredged or fill material into 
``waters of the United States'' when that discharge occurs as a result 
of the construction or maintenance of irrigation ditches, the 
maintenance of drainage ditches, or minor drainage associated with 
normal farming activities. 33 U.S.C. 1344(f)(1)(A), (C). One possible 
interpretation of these exemptions is an implicit acknowledgement that 
there may be some irrigation or drainage ditches that are ``waters of 
the United States,'' thus the need to exempt common agricultural and 
related practices in those waters from section 404 permitting. Another 
interpretation, and one that may more closely align with the pre-
existing CWA definition of ``point source,'' is that dredged or fill 
material is not subject to federal permitting if those materials get 
washed down the ditch into a connected ``water of the United States.''
    For irrigation ditches, which typically are constructed in upland 
but frequently must connect to a ``water of the United States'' to 
either capture or return flow, Congress exempted both the construction 
and maintenance of such facilities. 33 U.S.C. 1344(f)(1)(C); see also 
33 U.S.C. 1362(14) (excluding agricultural stormwater discharges and 
irrigation return flows from the definition of point source).\32\ The 
construction activities performed in upland areas are beyond the reach 
of the CWA, but the permitting exemption applies to the diversion 
structures, weirs, headgates, and other related facilities that connect 
the irrigation ditches to jurisdictional waters. See, e.g., Corps, 
Regulatory Guidance Letter No. 07-02, at 1-2 (July 4, 2007).
---------------------------------------------------------------------------

    \32\ The agencies also note that Congress exempted the discharge 
of irrigation return flows into waters of the United States from the 
section 402 permit program. 33 U.S.C. 1342(l). This exemption 
potentially would not be needed if agricultural drainage ditches 
carrying irrigation return flow were themselves waters of the United 
States, as the entry point of the irrigation return flow into the 
drainage ditch might then lack the requisite point source 
discharging mechanism given the diffuse overland flow entry point 
from the field to ditch in most circumstances.
---------------------------------------------------------------------------

    The permitting exemption for drainage ditches, by contrast, is 
limited to the maintenance of such ditches. 33 U.S.C. 1344(f)(1)(C). 
That is because an alternate formulation would have allowed the 
drainage of wetlands subject to CWA jurisdiction without a permit. 
Congress' concern for such a result is evident in the ``recapture'' 
provision of 33 U.S.C. 1344(f)(2). See, e.g., Sen. Rpt. 95-370, 95th 
Cong. 1st Sess., at 76-77 (July 19, 1977) (noting that exempted 
``activities should have no serious adverse impact on water quality if 
performed in a manner that will not impair the flow and circulation 
patterns and the chemical and biological characteristics of the 
affected waterbody'' and noting that the ``exemption for minor drainage 
does not apply to the drainage of swampland or other wetlands'').
    Thus, Congress may have envisioned the interconnection between the 
irrigation and drainage ditches and down-gradient ``waters of the 
United States'' as creating the need for the section 404(f) permitting 
exemptions, not necessarily that those ditches themselves are ``waters 
of the United States.'' The agencies have not been able to identify any 
legislative history, however, that signals the clear intent of Congress 
on this complex topic. The agencies also recognize that this 
interpretation of the statutory structure has not been articulated 
previously, and solicit comment on which this formulation adheres more 
closely to the language of the Act and the positions articulated by the 
plurality opinion in Rapanos. See, e.g., 547 U.S. at 735-36 and n.7. To 
be clear, the agencies are not saying that in all circumstances a ditch 
may be a water of the United States or a point source, but not both. 
The agencies are, however, attempting to more clearly establish 
demarcations between the two to reduce regulatory uncertainty.
    The agencies today propose to limit the term ``waters of the United 
States'' to apply to clearly defined categories of ditches and related 
features. The agencies propose to include their longstanding 
interpretation that ditches that satisfy any of the conditions of a 
category (a)(1) water are ``waters of the United States.'' This also 
includes tidal ditches and ditches that transport goods and services in 
interstate and foreign commerce, as those ditches--more commonly 
referred to as ``canals''--provide important commercial navigation 
services to the nation and operate more like natural waters 
traditionally understood as navigable. See, e.g., id. at 736 (Scalia, 
J., plurality) (``a permanently flooded man-made ditch used for 
navigation is normally described, not as a `ditch,' but a `canal' ''). 
The Los Angeles River, for example, is a ``water of the United States'' 
(having been determined to be a traditional navigable water) and would 
not be excluded under paragraph (b) even where it has been channelized 
or concreted. Other examples include the St. Lawrence Seaway, the 
Sturgeon Bay Ship Canal, and the Chesapeake and Delaware Canal.
    In addition, the agencies propose to include ditches that were 
constructed in a water that meets the proposed definition of 
``tributary'' and continues to meet the definition of ``tributary.'' 
This provision is consistent with the agencies' longstanding, historic 
position that non-tidal ditches excavated in upland (and historically 
described as ``dry land'') are not jurisdictional. Features, including 
ditches, that are not waters under paragraph (a)(1) and that are 
constructed in upland are not ``waters of the United States'' because 
areas that are naturally dry land do not meet the ordinary meaning of 
the term. As discussed in the introduction to Section III, ``waters of 
the United States'' are waters within the ordinary meaning of the term, 
such as oceans, rivers, streams, lakes, ponds, and wetlands; ditches 
artificially excavated in upland do not fit into this category. This 
proposal would also align the treatment of ditches to that of 
tributaries in this proposal, which retains the agencies' longstanding 
position that the alteration or relocation of a ``water of the United 
States'' does not modify the jurisdictional status of that water, and 
as such, ditches that alter or relocate a water of the United States 
would be jurisdictional.
    The agencies also propose to include ditches as ``waters of the 
United States'' if they were constructed in a wetland that meets this 
proposed definition of ``adjacent wetland,'' as long as the ditch also 
satisfies the conditions of the tributary definition in this proposed 
rule. Such an approach would align the proposed rule with the section 
404(f) permitting exemption for the maintenance but not construction of 
drainage ditches, and the associated concern expressed during the 
legislative process for the 1977 amendments related to draining swamps 
and wetlands. The provision would also be restricted to ditches that 
satisfy this proposed definition of ``tributary,'' as such ditches 
likely functionally maintain some of the same interconnected 
relationship between the drained wetland and navigable water that 
supported federal jurisdiction over

[[Page 4181]]

the adjacent wetland in the first instance.
    Ditches used to drain surface and shallow subsurface water from 
cropland are a quintessential example of the interconnected 
relationship between land and water resource management, as is managing 
water resources in the Western United States, conveying irrigation 
water to and from fields, and managing surface water runoff from lands 
and roads following precipitation events--all activities that rely on 
ditches. See, e.g., FERC v. Mississippi, 456 U.S. 742, 768 n.30 (1982) 
(characterizing ``regulation of land use [as] perhaps the 
quintessential state activity''). This proposal therefore effectuates 
the clear policy directive from Congress to preserve and protect the 
primary authority of States over land and water resources within their 
borders. See 33 U.S.C. 1251(b), 1370.
3. How might the agencies implement this approach?
    In order to be a jurisdictional ditch under this proposed rule, a 
feature would first need to meet the definition of ``ditch'' as 
proposed (i.e., an artificial channel used to convey water). An 
``artificial'' channel is not a natural feature, rather it has been 
constructed in some manner. Also, to meet the proposed definition of 
``ditch,'' the artificial channel must be used to convey water. Once a 
feature has been determined to meet the proposed definition of 
``ditch,'' a ditch would be considered ``waters of the United States'' 
if it meets any of the conditions in paragraph (a)(1). This would 
include ditches which are currently used, or were used in the past, or 
may be susceptible to use in interstate or foreign commerce, as well as 
ditches which are subject to the ebb and flow of the tide. This may 
include waters such as navigable canals and tidal drainage ditches. See 
Section III.A for further discussion on paragraph (a)(1) waters.
    A ditch would also be considered a ``water of the United States'' 
if it was constructed in a tributary as defined in paragraph (c)(11) 
and also satisfies the conditions of the tributary definition. A 
tributary that was channelized or straightened because its natural 
sinuosity has been altered, cutting off the meanders, may or may not 
meet the definition of ``ditch'' but nonetheless would remain a 
tributary as long as it meets the conditions of the tributary 
definition provided in this proposed rule. If these ditches were 
tributaries prior to their construction and continue to meet the 
conditions of the tributary definition after construction, they would 
remain jurisdictional under the proposed rule. However, if the evidence 
does not demonstrate whether a ditch was constructed in a tributary as 
defined in the proposed rule, that ditch would be considered to be non-
jurisdictional by the agencies under this proposal.
    For example, if the agencies are not sure whether a ditch was 
constructed in a tributary given the physical appearance and 
functionality of the current ditch, the agencies would look at the 
available evidence to attempt to discern when the ditch was constructed 
and the nature of the landscape before and after construction. If the 
evidence does not demonstrate that the ditch was located in a natural 
waterway, the agencies would consider the ditch non-jurisdictional 
under this proposed rule. If the evidence suggests that the ditch may 
have been constructed in a natural waterway, the agencies would review 
the available evidence to attempt to discern whether that natural 
waterway would qualify as a tributary under this proposed rule. Absent 
such evidence, the agencies would determine the ditch is non-
jurisdictional. If the evidence demonstrates that a ditch was 
constructed in a tributary, then the ditch would be a ``water of the 
United States'' as long as it still satisfies the conditions of the 
proposed definition of ``tributary.'' See Section III.D for further 
information about tributaries under this proposed rule.
    A ditch would be considered a ``water of the United States'' if it 
was constructed in an adjacent wetland as defined in this proposed rule 
(see Section III.G for a discussion of adjacent wetlands under this 
proposed rule), but only if that ditch also satisfies the conditions of 
the proposed definition of ``tributary.'' The same scenarios above for 
ditches constructed in a tributary would apply when determining the 
jurisdictional status of a ditch constructed in an adjacent wetland. If 
there is evidence to indicate that a ditch was constructed in an 
adjacent wetland as defined in the proposal, the agencies would 
consider the ditch to be jurisdictional if it also satisfies the 
conditions of the tributary definition as proposed. Absent such 
evidence, the agencies would determine the ditch is non-jurisdictional.
    Along with field data and current information on the subject water, 
historic tools and resources may also be used to determine the presence 
of a tributary or adjacent wetland at the time of ditch construction, 
and several sources of information may be required to make such 
determination. This may include historic topographic maps, historic 
aerial photographs, local and state records and surface water 
management plans, agricultural records, street maintenance data, 
precipitation records, historic permitting and jurisdictional 
determination records, certain hydrogeomorphological or soil 
indicators, wetlands and conservation programs and plans, and 
functional assessments and monitoring efforts. For example, when a USGS 
topographic map displays a tributary located upstream and downstream of 
a ditch, this may indicate that the ditch was constructed in a 
tributary.
    In addition, high resolution aerial photographs may be used to 
identify whether there are or were characteristics of a tributary 
upstream or downstream of a ditch, indicating that a ditch may have 
been constructed in a tributary. In some cases, stream channel 
morphology is visible on the aerial photograph along with visible 
persistent water (e.g., multiple dates of aerial photography showing 
visible water) providing evidence of the flow regime necessary to 
identify a tributary under this proposed rule at the time of ditch 
construction. However, characteristics of tributaries may not be 
visible in aerial photographs taken in areas with high shrub or tree 
cover, in which case aerial photographs taken during ``leaf off'' may 
provide the most beneficial information. National Wetlands Inventory 
maps may indicate the presence of a ditch constructed in an adjacent 
wetland; however, it may be challenging to identify the historic status 
of a wetland where a ditch has drained the wetland such that it would 
no longer meet the definition of ``adjacent wetland'' under this 
proposed rule. In general, the burden of proof would be on the agencies 
to determine the historic status of the ditch construction, and if 
field and remote-based resources do not provide sufficient evidence to 
show that the ditch was constructed in a tributary or an adjacent 
wetland then a determination would be made that the ditch is not 
jurisdictional under this proposed rule.
4. What are the specific issues upon which the agencies are seeking 
comment?
    While the public may comment on all aspects of the agencies' 
proposed rule, the agencies are proposing a number of ways to address 
and clarify jurisdiction over ditches as described above and are 
seeking comment. The agencies seek comment on the utility and clarity 
of proposing a separate category of jurisdictional ditches and how the 
agencies have delineated those ditches that would be ``waters of the 
United States'' and those that would be

[[Page 4182]]

excluded. In the alternative, the agencies seek public comment on 
whether the agencies should retain the historical treatment of 
jurisdictional ditches within the definition of ``tributary'' and not 
in a separate category. The agencies also seek comment on their 
proposed definition of ``ditch.''
    As the agencies consider how to implement this provision, the 
agencies seek comment on whether they should add a temporal component 
to distinguish jurisdictional ditches when evaluating ditches that may 
have been constructed in tributaries or adjacent wetlands. For example, 
the agencies could consider a ditch that appears to have been 
constructed in upland to be non-jurisdictional unless there is evidence 
that the ditch was in fact constructed in a natural waterway prior to 
the adoption of the 1972 CWA amendments. The agencies also solicit 
comment as to what tools can be used to help identify whether a ditch 
is constructed in upland or whether it was constructed in a tributary 
or adjacent wetland that meets the respective proposed definitions, and 
in particular what sort of showing would constitute evidence that a 
ditch was constructed in upland or in a jurisdictional tributary or 
adjacent wetland. The agencies seek comment as to whether there are 
other approaches for addressing the evidentiary concerns that may arise 
in a permitting context for historic ditches. For example, the agencies 
solicit comment on the role of historic photographs and records, in 
determining whether a ditch was built in a tributary and more generally 
what constitutes evidence that a ditch was constructed in a tributary 
or an adjacent wetland.
    In addition, the agencies solicit comment on the exclusion of all 
ditches constructed in upland, regardless of flow regime, and whether 
that is consistent with the plurality and concurring opinions in 
Rapanos. For example, ditches constructed in upland that flow 
perennially would be presumed non-jurisdictional under this proposal, 
even if they would also satisfy the conditions of the proposed 
tributary definition. Finally, the agencies solicit comment on whether 
a ditch can be both a point source and a ``water of the United 
States,'' or whether these two categories as established by Congress 
are mutually exclusive.

F. Lakes and Ponds

1. What are the agencies proposing?
    The agencies are proposing a separate category of waters of the 
United States to include certain lakes and ponds. The agencies are 
proposing three instances where lakes and ponds would meet the 
definition of ``waters of the United States.'' First, lakes and ponds 
that satisfy any of the conditions in paragraph (a)(1) are proposed to 
be included. Such lakes and ponds would be jurisdictional as an (a)(1) 
water, as well as an (a)(4) water.
    Second, lakes and ponds that contribute perennial or intermittent 
flow to an (a)(1) water in a typical year through an (a)(2)-(6) water 
would also be considered waters of the United States. This second 
category of lakes and ponds can contribute flow to an (a)(1) water 
either directly or through a tributary, jurisdictional ditch, another 
jurisdictional lake or pond, an impoundment, an adjacent wetland, or 
through a combination of these waters. The contribution of perennial or 
intermittent flow to an (a)(1) water from such lakes and ponds may also 
occur through water features identified in paragraph (b) of this 
proposal so long as those water features convey perennial or 
intermittent flow downstream and ultimately to an (a)(1) water. The 
term ``typical year'' as used in the proposed lakes and ponds category 
of ``waters of the United States'' would be implemented using the 
proposed definition of the term in paragraph (c)(12).
    Third, the agencies propose that lakes and ponds flooded by an 
(a)(1)-(5) water in a typical year would be waters of the United 
States. These lakes and ponds would receive flood waters from (a)(1)-
(5) waters via overtopping in a typical year.
2. Why are the agencies proposing this approach?
    The agencies propose to include certain lakes and ponds as waters 
of the United States because lakes and ponds are waters within the 
ordinary meaning of the term. As discussed in Section II, the plurality 
decision in Rapanos explains that the term ``the waters'' is most 
commonly understood to refer to ``streams and bodies forming 
geographical features such as oceans, rivers, lakes,'' or ``the flowing 
or moving masses, as of waves or floods, making up such streams or 
bodies.'' 547 U.S. at 732. The plurality also noted that its reference 
to ``relatively permanent'' waters did ``not necessarily exclude 
streams, rivers, or lakes that might dry up in extraordinary 
circumstances, such as drought,'' Id. at 732 n.5. The agencies focus in 
large part on the lake or pond's contribution of flow to and connection 
with traditional navigable waters to remain consistent with the overall 
structure and function of the CWA. See, e.g., SWANCC, 531 U.S. at 168 
n.3.
    Many commenters in the Federalism consultation with the agencies 
stated that the rule should include permanent lakes. Some commenters 
also stated that the rule should not include isolated lakes, which this 
proposal does not unless the lake satisfies the conditions in paragraph 
(a)(1). The agencies are proposing a distinct category for lakes and 
ponds because they are distinct water features; they are lentic systems 
(i.e., still waters) as opposed to tributaries, which are typically 
lotic features (i.e., flowing waters). In addition, the agencies view 
the establishment of a separate category for lakes and ponds as 
providing greater clarity and predictability for Federal agencies, 
States, Tribes, the regulated community, and the public, rather than 
including these waters in the definition of ``tributaries'' or with 
adjacent wetlands.
    As discussed in Section II, the agencies' authority to regulate 
``the waters of the United States'' is grounded in Congress' commerce 
power over navigation. The agencies can choose to regulate beyond 
waters more traditionally understood as navigable given the broad 
purposes of the CWA, but must provide a reasonable basis for doing so. 
The agencies are proposing that lakes and ponds that contribute 
perennial or intermittent flow to those traditional navigable waters, 
in any of the manners described above, fall within Congress' commerce 
power and are consistent with the ordinary meaning of ``waters of the 
United States,'' and that regulating them effectuates the goals and 
policies of the CWA.
    Lakes and ponds that satisfy any of the conditions in paragraph 
(a)(1) are traditionally navigable waters and as such should be 
considered waters of the United States for the same reasons discussed 
under the rationale for (a)(1) waters in this proposal. Lakes and ponds 
that contribute perennial or intermittent flow to an (a)(1) water in a 
typical year either directly or indirectly through an (a)(2)-(6) water 
or through water features identified in paragraph (b) of this proposal 
so long as those water features convey perennial or intermittent flow 
would also be considered waters of the United States. Such lakes and 
ponds would contribute flow in a manner similar to a tributary and 
would be jurisdictional for the same reasons that a tributary would be 
jurisdictional. Lakes and ponds that contribute flow to traditional 
navigable waters through ephemeral flow would be excluded for the same 
reasons that

[[Page 4183]]

ephemeral features are proposed to be not jurisdictional. The agencies 
believe that this proposed category of lakes and ponds better reflects 
the limits to the agencies' authority that the plurality and concurring 
opinions recognized in Rapanos.
    By requiring that a contribution of flow exists as perennial or 
intermittent flow between lakes and ponds and traditional navigable 
waters, including the territorial seas, in the proposed definition, the 
agencies would establish that a mere hydrologic connection cannot 
provide the basis for CWA jurisdiction; the connection must be 
perennial or intermittent flow from the lake or pond. This proposed 
requirement is informed by Rapanos wherein the plurality rejected the 
Federal government's hydrologic connection theory in deciding that the 
phrase ``the waters of the United States'' ``cannot bear the expansive 
meaning that the Corps would give it,'' id. at 732, and challenged the 
notion that ``even the most insubstantial hydrologic connection may be 
held to constitute a `significant nexus.' '' Id. at 728. It also 
reflects the plurality's description of a `` `wate[r] of the United 
States' '' as ``i.e., a relatively permanent body of water connected to 
traditional interstate navigable waters.'' Id. at 742 (emphasis added).
    Lakes and ponds that are flooded by an (a)(1)-(5) water in a 
typical year would be considered waters of the United States under this 
proposal. See Rapanos, 474 U.S. at 732 (Scalia, J., plurality) 
(recognizing that the term ``the waters'' within ``the waters of the 
United States'' includes ``the flowing or moving masses, as of waves or 
floods, making up . . . streams or bodies,'') (emphasis added) 
(internal quotations omitted); id. at 770 (Kennedy, J., concurring) 
(``the term `waters' may mean `flood or inundation' events that are 
impermanent by definition'') (emphasis added) (internal citations 
omitted). During times of inundation occurring from a jurisdictional 
water to a lake or pond in a typical year, such lake or pond is 
indistinguishable from and inseparably bound up with other waters of 
the United States.
    Flooding from a water of the United States to a jurisdictional lake 
or pond can occur as a result of seasonal or permanent flooding, for 
example, so long as flood waters connect such lakes or ponds to other 
waters of the United States in a typical year and have as their source 
a jurisdictional water. A mere hydrologic connection between a 
nonnavigable, isolated, intrastate lake or pond and a jurisdictional 
water, however, may be insufficient to establish jurisdiction under the 
proposed rule. For instance, a lake or pond that may be connected to a 
``water of the United States'' by flooding, on average, once every 100 
years would not be jurisdictional under this proposal. To be 
jurisdictional, a lake or pond that is otherwise physically separated 
from a ``water of the United States'' would need to be flooded by a 
jurisdictional water during a typical year; ecological connections 
between physically separated lakes and ponds and otherwise 
jurisdictional waters cannot be used to assert jurisdiction according 
to this proposal. See 547 U.S. at 741-42 (Scalia, J., plurality) 
(``SWANCC found such ecological consideration irrelevant to the 
question whether physically isolated waters come within the Corps' 
jurisdiction.'').
    The proposed lakes and ponds category would replace existing 
procedures that may depend on case-specific ``significant nexus'' 
analyses of the relationship between a particular lake or pond with 
downstream waters. The agencies are proposing to eliminate this case-
specific ``significant nexus'' analysis by providing a clear category 
of ``waters of the United States'' that is easier for members of the 
public and regulatory agencies to implement. In light of the clearer 
lakes and ponds category proposed today, the agencies propose to 
eliminate the case-specific significant nexus review through 
categorical treatment of certain lakes and ponds as ``waters of the 
United States.''
    This proposed rule identifies a category of certain lakes and ponds 
that due to their contribution of perennial or intermittent flow to 
navigable waters should be federally regulated. Through this proposed 
category, the agencies would also acknowledge the policy direction from 
Congress to ``recognize, preserve, and protect the primary 
responsibilities and rights of States to prevent, reduce, and eliminate 
pollution [and] to plan for the development and use (including 
restoration, preservation, and enhancement) of land and water resources 
. . . .'' 33 U.S.C. 1251(b); see also Rapanos, 547 U.S. at 737 (Scalia, 
J., plurality). The proposed approach to lakes and ponds is also 
intended to avoid ``impairing or in any manner affecting any right or 
jurisdiction of the States with respect to waters (including boundary 
waters) of such States.'' 33 U.S.C. 1370. For example, lakes and ponds 
which contribute ephemeral flow, such as through dry washes and 
arroyos, that lack the required perennial or intermittent flow regime 
necessary to satisfy the conditions of jurisdictional lakes and ponds 
under this proposed rule would not be ``waters of the United States.'' 
Those features are, however, water resources of the States, and 
therefore, States have an inherent interest in regulating such features 
pursuant to the powers reserved to the States under the Constitution. 
See., e.g., North Dakota, 127 F. Supp. 3d at 1059. States and Tribes 
may therefore address such features under their own laws to the extent 
they deem appropriate. Lakes and ponds that contribute flow through 
ephemeral features may also constitute point sources that discharge 
pollutants to a ``water of the United States.'' See Rapanos, 547 U.S. 
at 743-44 (Scalia, J., plurality). In those instances, authority to 
regulate water quality in downstream waters under the CWA is not lost 
to either Federal or State governments.
3. How might the agencies implement this approach?
    Most lakes and ponds are formed through a variety of events, 
including glacial, tectonic, and volcanic activity. Lakes and ponds can 
also be man-made features for industrial and agricultural uses, power 
generation, domestic water supply, or for aesthetic or recreational 
purposes. Most lakes and ponds have at least one natural outflow in the 
form of a river or stream, which maintain a lake's average level by 
allowing the drainage of excess water. Some lakes do not have a natural 
outflow and lose water solely by evaporation or underground seepage or 
both. Individual lakes and ponds range in size. Ponds are generally 
smaller in size than lakes but regional naming conventions vary. Lakes 
are also generally deeper than ponds.
    The tools and guidance which are described in Section III.A can be 
used to determine whether a lake or pond meets the terms of an (a)(1) 
water and as such would be jurisdictional under this proposed rule as 
an (a)(1) water, as well as an (a)(5) water. The same tools discussed 
in Section III.C can also be helpful in establishing the presence of a 
lake or pond. For example, where an enclosed body of water is displayed 
on a USGS topographic map or in NHD data it may indicate a lake or pond 
is present. USGS maps often include different symbols to indicate 
perennial or intermittent lakes and ponds and even a different symbol 
to indicate dry lakes and ponds, which may be helpful in determining 
whether such lakes and ponds satisfy the proposed definition of 
``waters of the United States.'' Waterbodies such as lake and pond 
features are also represented in NHDWaterbody. The NHD portrays the 
spatial geometry and the attributes of the feature. These water 
polygons may

[[Page 4184]]

also have NHDFlowline artificial paths drawn through them to allow the 
representation of water flow direction. Combining this information with 
climate and surrounding hydrology information can yield greater 
certainty as to the presence of a lake or pond and the flow regime the 
lake or pond contributes downstream. These tools may also be helpful in 
indicating whether the lake or pond is part of the ``waters of the 
United States'' network because they may identify whether it 
contributes perennial or intermittent flow downstream. For example, the 
presence of a ``blue line stream'' on USGS topographic or NHD maps 
which extends from the lake or pond may indicate the lake or pond 
contributes perennial or intermittent flow, directly or indirectly 
through an (a)(2)-(6) water, to the (a)(1) water in a typical year, 
which may indicate that the lake or pond is jurisdictional. Other 
reliable methods that can indicate existence of a lake or pond and 
potential jurisdictional status include gage data, bathymetry data, 
elevation data, spillway height, historic water flow records, flood 
predictions, statistical evidence, and direct observation.
    The agencies are proposing that lakes and ponds that are flooded by 
a water identified in paragraphs (a)(1)-(5) in a typical year would 
also be waters of the United States. The agencies propose to use flood 
records, precipitation data, elevation data, aerial photography, and 
field observations to help identify when a lake or pond may be flooded 
by an (a)(1)-(5) water in a typical year. Oxbows may be jurisdictional 
under this category.
    The information provided by the tools described above will vary in 
validity in different parts of the country, so care would be taken to 
evaluate the information prior to reasonably concluding a lake or pond 
is jurisdictional. Supporting information, as well as field work, may 
also be used to conclude the presence of a jurisdictional lake or pond.
4. What are specific issues upon which the agencies are seeking 
comment?
    The agencies welcome comment on the proposal to establish a 
distinct jurisdictional category for lakes and ponds and whether this 
provides additional clarity and regulatory certainty. In the 
alternative, the agencies solicit comment on incorporating 
jurisdictional lakes and ponds into another category, such as 
tributaries. The agencies note that there is considerable uncertainty 
about defining the difference between lakes and ponds, and no current 
accepted definition of either term across scientific disciplines 
exists. The agencies are soliciting comment on whether a specific 
definition of lakes and ponds should be provided in the rule language 
or whether any such definition is necessary. For example, the Corps has 
a definition of ``lake'' provided at 33 CFR 323.2, which includes, 
``The term lake means a standing body of open water that occurs in a 
natural depression fed by one or more streams from which a stream may 
flow, that occurs due to the widening or natural blockage or cutoff of 
a river or stream, or that occurs in an isolated natural depression 
that is not a part of a surface river or stream. The term also includes 
a standing body of open water created by artificially blocking or 
restricting the flow of a river, stream, or tidal area. . . .'' 
Alternatively, other definitions could be used to define lakes and 
ponds, such as the Cowardin classification system developed by the U.S. 
Fish and Wildlife Service which could use the permanently flooded and 
semi-permanently flooded for non-tidal waters categories. Such 
definition could be, ``Lakes and ponds are either semi-permanently or 
permanently flooded during a typical year and may or may not exhibit 
hydrophytic vegetation.'' There may also be other parameters used to 
define lakes and ponds, such as size and depth. For example, in the 
1975 regulations, the Corps had proposed a minimum size requirement on 
lakes of five acres to be waters of the United States. See 40 FR 31321. 
However, such size requirement received many negative comments that the 
size was too small or too large or did not account for seasonal changes 
in sizes of lakes, while others commented on the legality of imposing 
size limitations on lakes. See 42 FR 37129. Also, the agencies 
recognize that States and Tribes may have specific, validated tools 
they employ to identify lakes or ponds and are soliciting comment on 
those approaches which may be useful for application in this proposed 
rule.
    The agencies solicit comment on whether more specific parameters 
should be included for the type of flooding that should be included for 
lakes and ponds when flooded by an (a)(1)-(5) water in a typical year. 
For example, the agencies request comment as to whether to establish a 
specific flooding periodicity or magnitude or frequency. The agencies 
also solicit comment on other implementation tools available to 
determine the presence of a contribution of perennial or intermittent 
flow from the lake or pond in a typical year. Additionally, the 
agencies request comment on whether less than intermittent flow from 
lakes and ponds to an (a)(1) water in a typical year could be 
sufficient to extend jurisdiction to such lakes and ponds.

G. Wetlands

1. What are the agencies proposing?
    The agencies propose a category of ``waters of the United States'' 
to include all adjacent wetlands to: Traditional navigable waters, 
including the territorial seas; tributaries to those waters; 
jurisdictional ditches; jurisdictional lakes and ponds; and 
impoundments of otherwise jurisdictional waters. The agencies propose 
to maintain their longstanding regulatory definition of ``wetlands'' to 
mean ``those areas that are inundated or saturated by surface or ground 
water at a frequency and duration sufficient to support, and that under 
normal circumstances do support, a prevalence of vegetation typically 
adapted for life in saturated soil conditions. Wetlands generally 
include swamps, marshes, bogs, and similar areas.'' The presence and 
boundaries of wetlands are determined based upon an area satisfying all 
three of the definition's criteria (i.e., hydrology, hydrophytic 
vegetation, and hydric soils) under normal circumstances.
    The agencies propose to define the term ``adjacent wetlands'' to 
mean wetlands that abut or have a direct hydrologic surface connection 
to other ``waters of the United States'' in a typical year. ``Abut'' is 
proposed to mean when a wetland touches a water of the United States at 
either a point or side. A ``direct hydrologic surface connection'' as 
proposed occurs as a result of inundation from a jurisdictional water 
to a wetland or via perennial or intermittent flow between a wetland 
and a jurisdictional water.
    The agencies propose that when wetlands are physically separated 
from jurisdictional waters by upland or by dikes, barriers, or similar 
structures and also lack a direct hydrologic surface connection to 
jurisdictional waters, those wetlands are not adjacent. ``Upland'' in 
the proposed rule refers to any land area above the ordinary high water 
mark or high tide line that does not satisfy all three wetland 
delineation factors (i.e., hydrology, hydrophytic vegetation, and 
hydric soils) under normal circumstances, as described in the Corps' 
1987 Wetland Delineation Manual. Features that were once wetlands but 
have been naturally transformed or lawfully converted to upland (e.g., 
in compliance with a section 404 permit) would be

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considered upland. A ``typical year'' means within the normal range of 
precipitation over a rolling 30-year period for a particular geographic 
area. For convenience, the agencies propose to include the existing 
Corps definitions for ``ordinary high water mark'' and ``high tide 
line'' from 33 CFR 328.3, as those terms are used in the proposed 
definition of ``upland.''
    Wetlands that have a direct hydrologic surface connection to a 
``water of the United States'' via inundation by a jurisdictional water 
during a typical year would be adjacent wetlands under the proposal. 
Similarly, a wetland has a direct hydrologic surface connection to a 
jurisdictional water and is an adjacent wetland if the wetland and 
jurisdictional water are connected via perennial or intermittent flow 
in a typical year. The perennial or intermittent flow constituting the 
direct hydrologic surface connection may occur in either direction 
(i.e., jurisdictional water to wetland or wetland to jurisdictional 
water). Perennial or intermittent flow between a wetland and 
jurisdictional water may occur through upland or through a dike, 
barrier, or similar structure via a culvert, tide gate, or other 
feature. Perennial or intermittent flow between a wetland and 
jurisdictional water may also occur as a result of a wetland 
overtopping upland or overtopping a dike, barrier, or similar structure 
and flowing directly into a jurisdictional water.
2. Why are the agencies proposing this approach?
    The agencies are proposing the definition of ``adjacent wetlands'' 
based on the core principles and concepts set forth in the three major 
Supreme Court cases addressing the scope of the phrase ``the waters of 
the United States,'' as discussed at length in Section II.E.2. In 
summary, adjacent wetlands as proposed form part of the ``waters of the 
United States''; otherwise they are isolated from ``waters of the 
United States'' and not jurisdictional. The agencies' proposed 
definition is consistent with the ordinary meaning of the term 
``waters'' described in those cases and is intended to implement the 
CWA policy directive of preserving the ability of the States to 
regulate land and waters within their boundaries. The agencies view the 
proposed definition as establishing a clear, predictable regulatory 
framework that can be efficiently implemented in the field.
    This proposed definition of ``adjacent wetlands'' as wetlands 
abutting or having a direct hydrologic surface connection to other 
jurisdictional waters in a typical year rests on several key factors 
and considerations. As a threshold matter, the proposed definition is 
informed by the Supreme Court decisions in Riverside Bayview, SWANCC, 
and Rapanos. For example, the agencies considered the holding in 
Riverside Bayview ``that a definition of `waters of the United States' 
encompassing all wetlands adjacent to other bodies of water over which 
the Corps has jurisdiction is a permissible interpretation of the 
Act.'' 474 U.S. at 135. The proposed definition is consistent with the 
holding in Riverside Bayview and with the Supreme Court's subsequent 
interpretation of Riverside Bayview and the scope of CWA jurisdiction 
over wetlands in Rapanos, in which both the plurality and concurring 
opinions agreed that waters of the United States encompass wetlands 
closely connected to navigable waters. As discussed in Section II.E.2, 
the plurality characterized the scope of CWA jurisdiction over wetlands 
as encompassing wetlands, like those at issue in Riverside Bayview, 
with a ``continuous surface connection'' or a ``continuous physical 
connection'' to a navigable water, Rapanos, 547 U.S. at 742, 751 n.13. 
Justice Kennedy's concurrence recognized that ``the connection between 
a nonnavigable water or wetland and a navigable water may be so close, 
or potentially so close, that the Corps may deem the water or wetland a 
`navigable water' under the Act.'' Id. at 767. The concepts of 
``abutting'' and a ``direct hydrologic surface connection'' in this 
proposal are consistent with the Rapanos plurality's continuous surface 
connection requirement. Because the concept of ``abutting'' in this 
proposal does not require the existence of a hydrologic connection 
between wetlands that physically touch jurisdictional waters, this 
concept is also consistent with Justice Kennedy's statement that 
``[g]iven the role wetlands play in pollutant filtering, flood control, 
and runoff storage, it may well be the absence of hydrologic connection 
(in the sense of interchange of waters) that shows the wetlands' 
significance for the aquatic system.'' Id. at 786. The agencies 
acknowledge, however, that non-abutting wetlands may also lack a 
hydrologic connection. Those non-abutting wetlands would not be 
considered adjacent under this proposal because the agencies believe 
they do not implicate the line-drawing concerns articulated in 
Riverside Bayview, SWANCC, and the Rapanos plurality, and because this 
proposed definition will provide clear, understandable delineation 
between Federal waters and state land and water resources.
    The limits to this proposed definition, i.e., the categories of 
wetlands that the proposed definition would not encompass, are 
consistent with the principles articulated in the three key Supreme 
Court decisions. The inquiry as to where to draw the line between 
jurisdictional and non-jurisdictional wetlands is laid out in Riverside 
Bayview: ``[i]n determining the limits of its power to regulate 
discharges under the Act, the Corps must necessarily choose some point 
at which water ends and land begins . . . . Where on this continuum to 
find the limit of `waters' is far from obvious.'' 474 U.S. at 132. 
While the Court in Riverside Bayview identified this inquiry as a task 
for the Corps and deferred to the Corps' judgment under Chevron 
principles, the Supreme Court has subsequently recognized outer bounds 
for the scope of ``waters of the United States.''
    In SWANCC, the Supreme Court held that the agencies do not have 
authority to regulate nonnavigable, isolated, intrastate waters that 
lack a sufficient connection to a traditional navigable water, as 
regulation of those waters would raise constitutional questions 
regarding the scope of CWA authority. 531 U.S. at 172. The plurality 
opinion in Rapanos elaborated further on the wetlands that it did not 
consider jurisdictional under the Act, specifically, wetlands with only 
an ``intermittent, physically remote hydrologic connection to `waters 
of the United States,' '' as those ``do not implicate the boundary-
drawing problem of Riverside Bayview.'' 531 U.S. at 742. The proposed 
definition also reflects Justice Kennedy's concurring opinion in 
Rapanos that in some instances, as exemplified by the ``ponds and 
mudflats that were isolated in the sense of being unconnected to other 
waters covered by the Act,'' ``there may be little or no connection'' 
``between a nonnavigable water or wetland and a navigable water.'' Id. 
at 766-67. The proposal is consistent with SWANCC and the Rapanos 
plurality opinion in that it would exclude isolated wetlands with only 
physically remote hydrologic connections to jurisdictional waters. 
Under the proposed definition, ecological connections alone would not 
provide a basis for including physically isolated wetlands within the 
phrase ``the waters of the United States.'' See, e.g., id. at 741-42 
(Scalia, J., plurality) (``SWANCC rejected the notion that the 
ecological considerations upon which the Corps relied in Riverside 
Bayview--and upon which the dissent repeatedly relies today . . .--
provided an

[[Page 4186]]

independent basis for including entities like `wetlands' (or `ephemeral 
streams') within the phrase `the waters of the United States.' SWANCC 
found such ecological considerations irrelevant to the question whether 
physically isolated waters come within the Corps' jurisdiction.'' 
(original emphasis)).
    In assessing the appropriate ``limits of `waters' '' on the 
continuum between water and land, the proposed definition balances the 
inclusion of wetlands that have a direct hydrologic surface connection 
to otherwise jurisdictional waters during a typical year with the fact 
that ``a mere hydrologic connection should not suffice in all cases.'' 
Id. at 784 (Kennedy, J., concurring). For example, the Rapanos 
plurality questioned the Corps' broad interpretation of its regulatory 
authority to ``conclude that wetlands are `adjacent' to covered waters 
if they are hydrologically connected through directional sheet flow 
during storm events or if they lie within the 100-year floodplain of a 
body of water.'' Id. at 728 (internal citations and quotations 
omitted). Similarly, Justice Kennedy believed that ``possible 
flooding'' was an unduly speculative basis for a jurisdictional 
connection between wetlands and other jurisdictional waters as applied 
to the facts of Carabell. 547 U.S. at 786. In other words, wetlands 
separated from otherwise jurisdictional waters by upland or by dikes, 
barriers, or other similar structures are not adjacent simply because a 
surface water connection between the two is possible or if, for 
example, wetlands ``are connected to the navigable water by flooding, 
on average, once every 100 years'' or by directional sheet flow during 
an individual storm event. Id. In order to satisfy this proposed 
``adjacent wetlands'' definition, a wetland separated from other waters 
of the United States by upland or by dikes, barriers, or other similar 
structures would have to have a direct hydrologic surface connection to 
an otherwise jurisdictional water in a typical year.
    As proposed, a direct hydrologic surface connection occurs as a 
result of inundation from a jurisdictional water to a wetland or via 
perennial or intermittent flow between a wetland and a jurisdictional 
water. Inundation can occur as a result of seasonal or permanent 
flooding, for example, so long as inundation occurs in a typical year 
and has as its source a jurisdictional water. A direct hydrologic 
surface connection that occurs as a result of perennial or intermittent 
flow between a wetland and a jurisdictional water must satisfy the 
definitions of ``perennial'' or ``intermittent'' in this proposal and 
can occur either from a jurisdictional water to a wetland or from a 
wetland to a jurisdictional water. Ephemeral flow or ephemeral pooling 
occurring only in direct response to precipitation and connecting a 
wetland to a jurisdictional water does not constitute a direct 
hydrologic surface connection according to the proposal.
    Under current practice and in this proposal, wetlands adjacent to 
traditional navigable waters would be categorically jurisdictional. The 
agencies propose to adopt this position based on the rationale that an 
adjacent wetland is ``inseparably bound up with'' the jurisdictional 
water; if the water is jurisdictional, so is the adjacent wetland. 
Riverside Bayview, 474 U.S. at 134; Rapanos, 547 U.S. at 740 (plurality 
quoting Riverside Bayview) (`` `Faced with such a problem of defining 
the bounds of its regulatory authority,' we held, the agency could 
reasonably conclude that a wetland that `adjoin[ed]' waters of the 
United States is itself a part of those waters.'') (internal citations 
omitted). This position is consistent with Riverside Bayview, about 
which Justice Kennedy noted in Rapanos that ``the assertion of 
jurisdiction for those wetlands is sustainable under the Act by showing 
adjacency alone.'' 547 U.S. at 780.
    In addition, this proposed definition would end the current 
practice of conducting case-specific significant nexus evaluations for 
non-abutting wetlands to relatively permanent and non-relatively 
permanent waters. Under the agencies' Rapanos Guidance, this evaluation 
requires individual analyses of the relationship between a particular 
wetland with traditional navigable waters. Importantly, Justice 
Kennedy's ``significant nexus'' test for wetlands adjacent to 
nonnavigable tributaries was only needed ``absent more specific 
regulations,'' id. at 782, because ``the breadth of [the existing 
tributary] standard'' . . . ``seems to leave wide room for regulations 
of drains, ditches, and streams remote from any navigable-in-fact water 
and carrying only minor water volumes towards it'' and thus ``precludes 
its adoption as a determinative measure of whether adjacent wetlands 
are likely to play an important role in the integrity of an aquatic 
system comprising navigable waters as traditionally understood.'' Id. 
at 781. In light of the ``more specific [tributary] regulations'' 
proposed today, the agencies propose to eliminate the case-specific 
significant nexus analysis through categorical treatment of all 
adjacent wetlands, as defined by this proposal, as waters of the United 
States. The agencies recognize that this is a new position and 
modification of prior agency positions on Justice Kennedy's concurring 
opinion in Rapanos. The agencies also recognize that several courts 
have adopted the significant nexus standard as a test for jurisdiction 
for both adjacent wetlands and tributaries. The agencies believe, 
however, that this proposal provides better clarity for the regulators 
and the regulated community alike while adhering to the basic 
principles articulated in all three Supreme Court cases on point.
    The proposed categorical inclusion of adjacent wetlands beyond the 
wetlands that ``actually abut[ ]'' navigable-in-fact waters addressed 
in Riverside Bayview, 474 U.S. at 135, the agencies recognize, is 
dependent on the relationship between the other categories of ``waters 
of the United States'' and waters more traditionally understood as 
navigable. The agencies believe that the proposed definition of 
``tributary,'' as described in Section III.D, would appropriately limit 
federal jurisdiction to those rivers and streams that due to their 
relatively permanent flow regime and contribution of flow to navigable 
waters are ``significant enough that wetlands adjacent to them are 
likely, in the majority of cases, to perform important functions for an 
aquatic system incorporating navigable waters.'' Rapanos, 547 U.S. at 
781 (Kennedy, J., concurring). Because the tributary definition as 
proposed today ``rests upon a reasonable inference of ecological 
interconnection'' with navigable waters, and adjacent wetlands as 
proposed must be ``directly abutting'' or have a direct hydrologic 
surface connection to tributaries and are thus ``inseparably bound up 
with'' tributaries, the assertion of jurisdiction over wetlands 
adjacent to tributaries ``is sustainable under the Act by showing 
adjacency alone.'' Id. at 780 (citing Riverside Bayview, 474 U.S. at 
134). The proposed ``tributary'' definition--which addresses the 
``breadth of [the] standard'' about which Justice Kennedy was concerned 
in Rapanos--would provide support for the Court's conclusion in 
Riverside Bayview ``that a definition of `waters of the United States' 
encompassing all wetlands adjacent to other bodies of water over which 
the Corps has jurisdiction is a permissible interpretation of the 
Act.'' Id. at 135. To be clear, there is no requirement under this 
proposal to prove the existence of nor the significance of ``ecological 
interconnection'' between an adjacent wetland and navigable waters. If 
a wetland meets the proposed ``adjacent

[[Page 4187]]

wetland'' definition, it would be jurisdictional.
    The proposed definition of ``adjacent wetlands,'' which includes 
the term ``abut,'' also captures the common understanding of that term, 
meaning ``touching.'' See Webster's II, New Riverside University 
Dictionary (1994) (defining ``abut'' to mean ``to touch at one end or 
side of something''). This definition is also consistent with the 
common understanding of the term ``adjacent,'' which means ``next to,'' 
``adjoining,'' ``to lie near,'' or ``close to,'' see id., and is 
consistent with the Rapanos plurality's ``physical-connection 
requirement,'' 547 U.S. at 751 n.13.
    By retaining the term ``adjacent'' in the proposed definition from 
the longstanding regulations, the agencies would continue to use 
terminology that is familiar to the agencies and the regulated public. 
But the agencies are proposing not to include the terms ``bordering, 
contiguous, or neighboring'' from the 1986 regulations, as the agencies 
consider the term ``abut'' and the concept of a ``direct hydrologic 
surface connection'' as reducing the potential confusion associated 
with using three seemingly similar terms in the same definition. See, 
e.g., U.S. General Accounting Office, Waters and Wetlands, GAO-04-297, 
at 10 (Feb. 2004) (``The regulations specify that adjacent means 
`bordering, contiguous, or neighboring'. . . . This definition of 
adjacency leaves some degree of interpretation to the Corps 
districts''); see also id. at 3 (``Districts apply different approaches 
to identify wetlands that are adjacent to other waters of the United 
States and are subject to federal regulation.'').
    The term ``abut'' in the proposed definition, meaning ``to touch at 
least at one point or side of'' a jurisdictional water, would provide 
members of the regulated community with fair notice as to whether 
wetlands are subject to CWA jurisdiction. The agencies consider 
wetlands that abut or have a direct hydrologic surface connection to 
otherwise jurisdictional waters in a typical year to better meet the 
ordinary meaning of the term ``waters'' more clearly than wetlands 
separated from such waters by dry land and lacking a direct hydrologic 
surface connection or located a specified distance from those waters. 
See, e.g., 547 U.S. at 740 quoting Riverside Bayview, 474 U.S. at 132, 
135, and n. 9 (``[W]e held, the agency could reasonably conclude that a 
wetland that `adjoin[ed]' waters of the United States is itself a part 
of those waters.'').
    This proposed categorical treatment of adjacent wetlands would also 
effectuate the clear policy direction from Congress to ``recognize, 
preserve, and protect the primary responsibilities and rights of States 
to prevent, reduce, and eliminate pollution [and] to plan for the 
development and use (including restoration, preservation, and 
enhancement) of land and water resources . . . .'' 33 U.S.C. 1251(b); 
see also Rapanos, 547 U.S. at 737 (Scalia, J., plurality). The agencies 
believe that this approach avoids ``impairing or in any manner 
affecting any right or jurisdiction of the States with respect to the 
waters (including boundary waters) of such States.'' Id. at 1370. 
Wetlands that do not abut or have a direct hydrologic surface 
connection to other waters of the United States in a typical year are 
not inseparably bound up with the waters of the United States and are 
more appropriately regulated as land and water resources of the States 
and Tribes pursuant to their own authorities.
    The agencies also note that the proposed definition of ``adjacent 
wetlands'' and the categorical treatment of jurisdiction over wetlands 
adjacent to tributaries as proposed is informed by, though not dictated 
by, science. For example, the EPA's Science Advisory Board noted when 
reviewing the Draft Connectivity Report in 2014, ``[s]patial proximity 
is one important determinant of the magnitude, frequency and duration 
of connections between wetlands and streams that will ultimately 
influence the fluxes of water, materials and biota between wetlands and 
downstream waters.'' SAB Review at 60. ``Wetlands that are situated 
alongside rivers and their tributaries are likely to be connected to 
those waters through the exchange of water, biota and chemicals. As the 
distance between a wetland and a flowing water system increases, these 
connections become less obvious.'' Id. at 55 (emphasis added). The 
Connectivity Report also recognizes that ``areas that are closer to 
rivers and streams have a higher probability of being connected than 
areas farther away.'' Connectivity Report at ES-4. As discussed above, 
however, the line between Federal and State waters is a legal 
distinction, not a scientific one, that reflects the overall framework 
and construct of the CWA. This proposed definition would draw the legal 
limit of federal jurisdiction as those wetlands that abut or have a 
direct hydrologic surface connection to otherwise jurisdictional 
waters, including tributaries as defined in this proposal, in a clear 
and implementable way that adheres to established legal principles 
while being informed by the policy choices and expertise of the 
executive branch agencies charged with administering the CWA.
3. How might the agencies implement this approach?
    Under this proposal, wetlands would be considered indistinguishable 
from other jurisdictional waters, and therefore adjacent, when they 
abut such waters, even in the absence of a surface hydrological 
connection occurring between the two. Alternatively, when wetlands are 
not abutting jurisdictional waters, for example where wetlands are 
separated from jurisdictional by upland or dikes, barriers, or other 
similar structures, those wetlands would not be adjacent wetlands 
unless they have a direct hydrologic surface connection to a 
jurisdictional water during a typical year. If a wetland satisfies this 
proposed definition it would be considered a ``water of the United 
States'' without need for further case-specific significant nexus 
analysis. This categorical inclusion, however, does not alleviate the 
need for site-specific verification of jurisdiction, such as 
confirmation of wetland characteristics, whether the wetlands abut 
another jurisdictional water and other issues typically addressed 
during a jurisdictional determination process.
    The proposed definition of ``adjacent wetlands'' would not require 
surface water exchange between wetlands and the jurisdictional waters 
they abut to create the jurisdictional link, consistent with case law 
and for ease of implementation. See Riverside Bayview, 474 U.S. at 129 
(``The plain language of the [Corps' 1977] regulation refutes the Court 
of Appeals' conclusion that inundation or `frequent flooding' by the 
adjacent body of water is a sine qua non of a wetland under the 
regulation.''). Rather, as proposed, a wetland that directly touches an 
otherwise jurisdictional water at a point or side is ``adjacent'' 
regardless of where ``the moisture creating the wetlands . . . find[s] 
it source.'' Rapanos, 547 U.S. at 772 (Kennedy, J., concurring), citing 
Riverside Bayview, 474 U.S. at 135.
    In addition to wetlands that actually abut other jurisdictional 
waters, the proposed definition considers wetlands to be ``adjacent'' 
when they have a direct hydrologic surface connection to jurisdictional 
waters during a typical year. See Rapanos, 474 U.S. at 732 (Scalia, J., 
plurality) (recognizing that the term ``the waters'' within ``the 
waters of the United States'' includes ``the flowing or moving masses, 
as of waves or floods, making up . . . streams or bodies'') (emphasis 
added) (internal quotations omitted); id. at 770 (Kennedy, J., 
concurring) (``the term

[[Page 4188]]

`waters' may mean `flood or inundation' events that are impermanent by 
definition'') (emphasis added) (internal citations omitted). During 
times of inundation occurring from a jurisdictional water to a wetland 
in a typical year, ``adjacent wetlands'' are indistinguishable from and 
inseparably bound up with other waters of the United States. In 
addition to regular flooding, such direct hydrologic surface 
connections during a typical year may be the result of perennial or 
intermittent flow between a wetland and a jurisdictional water. Surface 
water from a wetland that overtops a berm and connects the wetland to a 
jurisdictional water or connections from a wetland to a jurisdictional 
water through upland or through a barrier as mediated by a culvert, 
tide gate, or similar structure would constitute direct hydrologic 
surface connections so long as such connections are perennial or 
intermittent as defined in this proposal and occur in a typical year. 
As proposed, a direct hydrologic surface connection may occur as either 
confined or unconfined perennial or intermittent flow. Wetlands with a 
direct hydrologic surface connection to other jurisdictional waters are 
indistinguishable from and inseparably bound up with those waters of 
the United States and are adjacent wetlands under this proposal. 
Ephemeral connections as well as subsurface connections between 
wetlands and jurisdictional waters do not constitute a direct 
hydrologic surface connection according to this proposal.
    A mere hydrologic connection between a nonnavigable, isolated, 
intrastate wetland and a jurisdictional water, however, may be 
insufficient to establish adjacency under the proposed rule. For 
instance, the fact that a wetland may be connected to the navigable 
water by flooding, on average, once every 100 years does not satisfy 
the proposed ``adjacent wetlands'' definition. To be adjacent, a 
wetland that is otherwise physically separated from a ``water of the 
United States'' would need to have a direct hydrologic surface 
connection to a jurisdictional water during a typical year; ecological 
connections between physically separated wetlands and otherwise 
jurisdictional waters cannot be used to determine adjacency according 
to this proposal. See 547 U.S. at 741-42 (Scalia, J., plurality) 
(``SWANCC found such ecological consideration irrelevant to the 
question whether physically isolated waters come within the Corps' 
jurisdiction.''). The agencies may determine that a direct hydrologic 
surface connection exists during a typical year using, for example, 
USGS stream gage records, channel-forming discharge recurrence 
interval, and/or wetland surface water level records. Physically remote 
isolated wetlands, however, would not be adjacent wetlands under this 
proposal.
    In addition, a jurisdictional wetland divided by an artificial 
feature, such as a road, would be treated as a single wetland and 
remain jurisdictional unless there is no direct hydrologic surface 
connection during a typical year between the wetlands present on either 
side of that feature. Without such direct hydrologic surface 
connection, only that wetland (i.e., that portion of the original 
wetland) which abuts or has a direct hydrologic surface connection to 
another ``water of the United States'' would be jurisdictional as 
adjacent, even if there is a subsurface hydrologic connection between 
the wetlands present on either side of the road. If there is a direct 
hydrologic surface connection between the wetlands on either side of 
the road during a typical year, such as where the road has a low-flow 
crossing or another direct hydrologic surface connection provided by a 
conduit, such as a culvert, as well as where there is a direct 
hydrologic surface connection via overtopping of the road, the wetlands 
on either side of the road may be treated as one wetland and would be 
jurisdictional as adjacent in its entirety.
    For purposes of adjacency under the proposed rule, the entire 
wetland would be considered adjacent if any portion of the wetland 
abuts or has a direct hydrologic surface connection to another ``water 
of the United States,'' regardless of the size and extent of the 
wetland. For example, if a portion of one side of a wetland physically 
touches a tributary, then the wetland would be jurisdictional in its 
entirety. Similarly, if any part of a wetland has a direct hydrologic 
surface connection to a jurisdictional water, the entire wetland would 
be considered adjacent. Interpreting the entire wetland to be adjacent 
if any portion of it satisfies the proposed ``adjacent wetlands'' 
definition is consistent with longstanding practice. The agencies have 
found this approach to be simpler and easier to implement in the field 
than establishing a means of bifurcating wetlands. An adjacent wetland 
that changes classification (e.g., as defined in Cowardin et al. 1979) 
due to landscape position, hydrologic inundation, or other factors, 
such as changing from salt marsh to brackish to freshwater wetland, 
would remain jurisdictional as one adjacent wetland.
    The term ``adjacent wetlands'' as proposed includes reference to 
``upland.'' The term upland has been used in program implementation for 
at least a decade following the agencies' Rapanos Guidance and thus is 
familiar to the regulated community and field staff. The term 
``upland'' is defined in this proposal as any land that does not meet 
the three-part test (i.e., hydrology, hydrophytic vegetation, and 
hydric soils) for wetland under normal circumstances, and as the 
ordinary meaning of the term clearly indicates, would not include other 
``waters of the United States.''
    Wetlands separated from other ``waters of the United States'' by 
upland or by dikes, barriers, or similar structures would not be 
adjacent and would not be jurisdictional wetlands under the proposed 
rule, unless there is a direct hydrologic surface connection between 
the wetland and those waters through or over such structures during a 
typical year. This is because upland or dikes, barriers, or similar 
structures typically block most surface water flow. However, if there 
is a direct hydrologic surface connection during a typical year between 
the wetland and other ``waters of the United States'' through the dike, 
barrier, or similar structure, such as through a culvert or tide gate, 
the wetland would remain adjacent under this proposed rule. A direct 
hydrologic surface connection can also result from water in the wetland 
overtopping a berm or barrier to connect the wetland via perennial or 
intermittent flow to a jurisdictional water in a typical year.
    Adjacent wetlands under this proposal would include wetlands with 
alternating hydroperiods and seasonal wetlands with vegetation shifts 
so long as the delineated boundary of the wetland abuts a 
jurisdictional water. The delineated boundary of a seasonal wetland 
remains constant, even though all three delineation factors may not be 
apparent year-round, as is current practice. This proposed approach 
acknowledges seasonal variation in visible wetland characteristics as 
well as the variation in hydrology and climatic conditions across the 
country. For example, wetlands with alternating hydroperiods that abut 
another ``water of the United States'' in the arid West may only have 
hydrology present for three months while those wetlands in the 
southeast may have hydrology present for nine months. Wetland hydrology 
indicators involving direct observation of surface water or saturated 
soils often are present only during the normal wet portion of the 
growing season and may be absent during the dry season. Also, seasonal 
wetlands

[[Page 4189]]

with vegetation shifts may display hydrophytic vegetation abutting 
another ``water of the United States'' except during the dry season. 
Certain wetland indicators may not be present year-round in a typical 
year, such as indicators of hydrophytic vegetation, hydric soil, or 
wetland hydrology periodically due to normal seasonal or annual 
variability.
    Where wetlands in a complex of wetlands have a continuous physical 
surface connection to one another such that upland boundaries or dikes, 
barriers, or other structures cannot be drawn to distinguish them as 
physically separated, the agencies would evaluate these wetlands as a 
single wetland under the proposed rule. If any portion of these 
physically interconnected wetlands is adjacent to another ``water of 
the United States,'' the wetland would be considered adjacent for 
purposes of this proposed rule.
    Given the focus of the proposed adjacent wetlands definition based 
on the ordinary meaning of the term ``waters,'' common principles from 
case law, and the limitations on federal authority embodied in section 
101(b) of the Act, this proposed definition does not include subsurface 
hydrologic connectivity as a basis for determining adjacency. The 
agencies are concerned that the use of shallow subsurface connection 
could encroach on State and tribal authority over land and water 
resources and could be confusing and difficult to implement, including 
in determining whether a subsurface connection exists and to what 
extent. The categorical inclusion of all wetlands that abut other 
``waters of the United States'' and all wetlands with a direct 
hydrologic surface connection to other jurisdictional waters will 
invariably include some wetlands that also connect to those waters 
through shallow subsurface flow. Physically remote wetlands and 
wetlands lacking a direct hydrologic surface connection would be 
reserved to regulation by States and Tribes as land and water resources 
of those States and Tribes.
4. What are the specific issues upon which the agencies are seeking 
comment?
    While the public may comment on all aspects of the agencies' 
proposed rule, the agencies have proposed a number of ways to try to 
address and clarify jurisdiction over wetlands as described above and 
are seeking comment. As a threshold matter, the agencies solicit 
comment on their interpretations of Riverside Bayview, SWANCC, and the 
Rapanos opinions, including specifically the proposal to provide 
regulatory certainty through categorical treatment of adjacent wetlands 
rather than on the case-by-case application of Justice Kennedy's 
significant nexus test.
    While the agencies are not proposing to change the longstanding 
regulatory definition of ``wetlands,'' they request comment on whether 
including in the regulatory text that areas must satisfy all three 
wetland delineation criteria (i.e., hydrology, hydrophytic vegetation, 
and hydric soils) under normal circumstances to qualify as wetlands 
would provide additional clarity. The agencies also seek comment on 
whether there are terms or phrases within the existing wetlands 
definition that require clarification (e.g., ``under normal 
circumstances''), and if so how such terms might be defined and if 
clarification should be provided, for example, via regulatory text or 
future agency guidance.
    The agencies are soliciting comment on other potential 
interpretations of adjacency, such as including a distance limit to 
establish the boundaries between Federal and State waters, which 
several pre-proposal commenters recommended. For example, some 
commenters have suggested using distance from another jurisdictional 
water as the basis for asserting jurisdiction over wetlands, even if 
those wetlands do not abut or have a direct hydrologic surface 
connection to such waters in a typical year. Others have suggested 
establishing a jurisdictional cut-off in a contiguous wetland for 
administrative purposes rather than extending jurisdiction to the outer 
limits of the wetland where all three wetland characteristics are no 
longer satisfied. The agencies solicit comment on these alternate 
suggestions.
    The agencies are also soliciting comment on whether the definition 
of ``adjacent wetlands'' should not include reference to dikes, 
barriers, and similar structures and instead those terms should be 
included in the definition of ``upland.'' The definition of ``upland'' 
would then mean, ``any land area, including dikes, barriers, or similar 
structures, that under normal circumstances does not satisfy all three 
wetland delineation criteria (i.e., hydrology, hydrophytic vegetation, 
hydric soils) identified in paragraph (c)(15) of this section, and does 
not lie below the ordinary high water mark or the high tide line of a 
water identified in paragraphs (a)(1)-(6) of this section.'' Upland 
would include both natural and artificial land areas meeting the 
definition.
    The agencies are also soliciting comment on an alternate approach, 
whereby wetlands that are separated from another jurisdictional water 
by upland or a dike, barrier or other similar structure would not be 
jurisdictional even if they have a direct hydrologic surface connection 
in a typical year to an otherwise jurisdictional water. Unlike the 
proposed approach, this alternative would not allow for seasonal 
overtopping, for example, to provide for a direct hydrologic surface 
connection during a typical year, but wetlands would be jurisdictional 
if the direct hydrologic surface connection is through the upland or 
structure (e.g., through a culvert). The agencies solicit comment on 
whether this approach is more consistent with the considerations 
articulated above than the approach in the proposed definition.
    The agencies note that identifying remotely whether wetlands abut a 
jurisdictional water can be challenging, especially with 2-D aerial 
imagery and the resolution of remote tools. The agencies are soliciting 
comment on which indicators can be used to determine whether a wetland 
abuts a jurisdictional water, and whether surface hydrology indicators 
or remote tools exist that may be helpful. The agencies believe that it 
is also important to consider weather and climatic conditions, i.e., 
review recent precipitation and climate records, to ensure adjacency is 
not being assessed during a period of drought or after a major 
precipitation or infrequent flood event. These climatic assessments 
could employ the same tools used to evaluate whether it is a ``typical 
year'' for purposes of determining whether a tributary is 
jurisdictional.
    The agencies seek comment on whether it is appropriate to describe 
a ``direct hydrologic surface connection'' as occurring due to 
inundation from an (a)(1)-(5) water or via perennial or intermittent 
flow between a wetland and an (a)(1)-(5) water in a typical year. 
Additionally, the agencies request comment on whether other types of 
hydrologic surface connections between wetlands and jurisdictional 
waters could constitute a ``direct hydrologic surface connection'' or 
if and under what circumstances subsurface water connections between 
wetlands and jurisdictional waters could be used to determine 
adjacency.
    The agencies are also soliciting comment on other tools that may be 
helpful in implementation of the proposed adjacent wetlands category. 
For example, the agencies seek comment as to whether tools such as NRCS 
Soil Surveys (Flooding Frequency Classes), tidal gauge data, and site-
specific modeling (e.g., Hydrologic Engineering Centers River System

[[Page 4190]]

Analysis System or HEC-RAS), as well as historical evidence, such as 
photographs, prior delineations, topographic maps, and existing site 
characteristics, could be helpful in implementation.

H. Waters and Features That Are Not Waters of the United States

1. What are the agencies proposing?
    In paragraph (b) of the proposal, the agencies propose eleven 
exclusions from the definition of ``waters of the United States.'' 
Specifically, under this proposal, any water not enumerated in 
paragraphs (a)(1) through (6) would not be a water of the United 
States. The proposed rule would exclude groundwater, including 
groundwater drained through subsurface drainage systems. This proposed 
rule would exclude ephemeral surface features and diffuse stormwater 
run-off such as directional sheet flow over upland. This proposal would 
exclude all ditches from the definition of ``waters of the United 
States'' except those ditches identified in paragraph (a)(3) of the 
proposed rule. Jurisdictional ditches identified in paragraph (a)(3) 
include: (1) Ditches that satisfy any of the conditions identified in 
paragraph (a)(1); (2) ditches constructed in a tributary as long as 
those ditches also satisfy the conditions of the tributary definition; 
and (3) ditches constructed in an adjacent wetland as long as those 
ditches also satisfy the conditions of the tributary definition. See 
the Section III.E for further discussion on the types of ditches which 
would be considered ``waters of the United States'' under this proposed 
rule. All other ditches are proposed to be excluded.
    Prior converted cropland has been excluded from this definition 
since 1993 and would continue to be excluded. The agencies include in 
the proposed rule a definition of ``prior converted cropland'' and an 
explanation of when a prior converted cropland designation would no 
longer be applicable for purposes of the CWA. The agencies also propose 
to exclude artificially irrigated areas, including fields flooded for 
rice or cranberry growing, that would revert to upland should 
application of irrigation water to that area cease. In addition, the 
agencies propose to exclude artificial lakes and ponds constructed in 
upland, such as water storage reservoirs, farm and stock watering 
ponds, settling basins, and log cleaning ponds, as long as they are not 
subject to jurisdiction under either paragraph (a)(4) or (a)(5) of the 
proposed rule. The proposed rule would also exclude water-filled 
depressions created in upland incidental to mining or construction 
activity, and pits excavated in upland for the purpose of obtaining 
fill, sand, or gravel. The agencies also propose to exclude stormwater 
control features excavated or constructed in upland to convey, treat, 
infiltrate, or store stormwater run-off. Also proposed to be excluded 
are wastewater recycling structures constructed in upland, such as 
detention, retention and infiltration basins and ponds, and groundwater 
recharge basins. Waste treatment systems have been excluded from this 
definition since 1979, and they would continue to be excluded under 
this proposal; however, waste treatment systems are being defined for 
the first time in this proposed rule under paragraph (c). A waste 
treatment system would include all components, including lagoons and 
treatment ponds (such as settling or cooling ponds), designed to convey 
or retain, concentrate, settle, reduce, or remove pollutants, either 
actively or passively, from wastewater prior to discharge (or 
eliminating any such discharge). A waste treatment system requires a 
section 402 permit if it discharges into a water of the United States.
2. Why are the agencies proposing this approach?
    These proposed exclusions generally reflect the agencies' current 
practice, and their inclusion in the proposed rule would further the 
agencies' goal of providing greater clarity over which waters are and 
are not regulated under the CWA. Just as the proposed categorical 
assertions of jurisdiction over tributaries and adjacent wetlands would 
simplify the jurisdiction issue, the categorical exclusions would 
likewise simplify the process, and they reflect the agencies' proposed 
determinations of the lines of jurisdiction based on the case law and 
the agencies' long-standing practice and technical judgment that 
certain waters and features are not subject to the CWA.
    The plurality opinion in Rapanos noted that there were certain 
features that were not primarily the focus of the CWA, such as channels 
that periodically provide drainage for rainfall. See 547 U.S. at 734. 
During outreach for this proposed rule, many States, regional groups, 
and national associations requested ``distinct,'' ``specific,'' and 
``clear'' exclusions from the definition of ``waters of the United 
States.'' In this proposed rule, the agencies propose to thus draw 
lines and articulate that certain waters and features would not be 
subject to the jurisdiction of the CWA, consistent with the agencies' 
proposed interpretation of this statutory term.
    Importantly, the agencies are proposing that all waters and 
features identified in paragraph (b) as excluded would not be ``waters 
of the United States.'' As stated in paragraph (b)(1) of the proposed 
rule, waters or water features not enumerated in paragraphs (a)(1) 
through (6) would not be a water of the United States. The agencies are 
proposing to take this approach to avoid suggesting that but for an 
applicable exclusion, such features could be jurisdictional. This 
proposed approach comprehensively excludes all waters and features the 
agencies do not intend to include as ``waters of the United States.'' 
Different features are called different names in different parts of the 
country, so this approach is intended to also eliminate the risk of 
confusion.
    In proposed paragraph (b)(2), the agencies would exclude 
groundwater, including groundwater drained through subsurface drainage 
systems. The agencies have never interpreted ``waters of the United 
States'' to include groundwater and would continue that practice 
through this proposed rule by explicitly excluding groundwater.
    In proposed paragraph (b)(3), the agencies would exclude ephemeral 
features and diffuse stormwater run-off, including directional sheet 
flow over upland. Such features would not be jurisdictional under the 
proposed terms of paragraph (a) or the proposed definitions in 
paragraph (c). They would be specifically excluded in the proposed rule 
to avoid confusion. This proposed exclusion would further highlight and 
clarify that such features are not tributaries under the proposed rule.
    The proposed ditch exclusion in paragraph (b)(4) is intended to be 
clearer for the regulated public to identify and more straightforward 
for agency staff to implement than current practice. The agencies have 
proposed a clear statement that all types of ditches would be excluded 
except for three instances (see paragraph (a)(3) and the Section III.E 
for further information on ditches). First, ditches that are (a)(1) 
waters would be ``waters of the United States.'' Second, ditches 
constructed in a tributary and that continue to satisfy the conditions 
of the tributary definition after alteration would be ``waters of the 
United States.'' And third, ditches constructed in an adjacent wetland 
that satisfy the conditions of the tributary definition would be 
``waters of the United States.'' Many States, regional groups and 
national associations that commented during the Federalism consultation 
and during the agencies' general outreach efforts noted that the 
definition of ``waters of the United States'' should exclude ditches. 
This

[[Page 4191]]

approach reasonably balances the exclusion with the need to preserve 
jurisdiction over tributaries and adjacent wetlands as defined in this 
proposal. With this proposed approach, the agencies seek to address the 
kinds of ditches of concern to many stakeholders.
    The definition of ``waters of the United States'' would continue to 
exclude prior converted cropland in this proposed rule. The agencies 
are proposing to move this exclusion to paragraph (b)(5), add a 
definition of ``prior converted cropland'' in paragraph (c)(8), and 
clarify that the prior converted cropland exclusion would no longer be 
applicable when the cropland is abandoned and the land has reverted to 
wetlands, as that term is defined in paragraph (c)(15). Under this 
proposed rule, prior converted cropland is considered abandoned if it 
is not used for, or in support of, agricultural purposes at least once 
in the immediately preceding five years. Agricultural purposes include 
land use that makes the production of an agricultural product possible, 
including but not limited to grazing and haying. This proposed rule 
would also clarify that cropland that is left idle or fallow for 
conservation or agricultural purposes for any period of time remains in 
agricultural use, and therefore maintains the prior converted cropland 
exclusion. The agencies believe that this clarification is necessary to 
ensure that cropland enrolled in long-term and other NRCS conservation 
programs administered by the United States or by State and local 
agencies that prevents erosion or other natural resource degradation 
does not lose its prior converted cropland designation as a result of 
implementing conservation practices. The five-year timeframe for 
maintaining agricultural purposes is consistent with the 1993 preamble. 
58 FR 45033. It is also consistent with the five-year timeframe 
regarding validity of a jurisdictional determination. See 2005 Corps 
Regulatory Guidance Letter (RGL) 05-02. These proposed revisions are 
intended to clarify the scope and application of the prior converted 
cropland exclusion and reaffirm key principles from the 1993 preamble. 
58 FR 45033.
    In 1993, the agencies categorically excluded prior converted 
cropland from the definition of ``waters of the United States.'' The 
1993 preamble defined prior converted cropland as ``areas that, prior 
to December 23, 1985, were drained or otherwise manipulated for the 
purpose, or having the effect, of making production of a commodity crop 
possible [and that are] inundated for no more than 14 consecutive days 
during the growing season.'' 58 FR 45031. As explained in detail in the 
1993 preamble, the agencies' objective is to protect the nation's 
waters, including the navigable waters, and due to the degraded and 
altered nature of prior converted cropland, the agencies determined 
that such lands should not be treated as jurisdictional wetlands for 
purposes of the CWA. 58 FR 45032. The 1993 preamble also set out a 
mechanism to ``recapture'' prior converted cropland into the section 
404 program when the land has been abandoned and wetland features 
return. 58 FR 45034. This approach is consistent with the principles in 
the 1990 Corps RGL 90-7. Although included in the 1993 preamble and RGL 
90-7, these principles have not been incorporated into the text of any 
promulgated rule. This rulemaking therefore represents the first time 
the agencies are proposing regulatory language to clarify the meaning 
of ``prior converted cropland,'' the application of the exclusion, and 
a recapture mechanism based on abandonment and reversion to wetlands.
    Historically, the agencies have attempted to create consistency 
between the CWA and the Swampbuster program for prior converted 
cropland. The agencies continue to believe that consistency across 
these programs is important for the regulated community (see 58 FR 
45033), and therefore propose to continue excluding prior converted 
cropland from the definition of waters of the United States. By 
incorporating the abandonment principles from the 1993 preamble, this 
proposal remains consistent with the concepts underlying the 
Swampbuster program but differs in implementation from certain aspects 
of USDA's current program. Incorporating the abandonment principle, as 
opposed to a pure ``change in use'' policy (described below), is 
important for the agencies to appropriately manage wetland resources 
while providing better clarity to the farming community.
    When the 1993 preamble was published, the abandonment recapture 
principle was consistent with USDA's implementation of the Swampbuster 
program. Three years later, the 1996 Swampbuster amendments modified 
the abandonment principle and incorporated a ``change in use'' policy. 
Under the new policy, prior converted cropland would continue to be 
regulated as such even if wetland characteristics returned because of 
lack of maintenance of the land or other circumstances beyond the 
owner's control, ``as long as the prior converted cropland continues to 
be used for agricultural purposes.'' Conf. Rep. No. 104-494, at 380 
(1996). In 2005, the Army and USDA issued a joint Memorandum to the 
Field (the 2005 Memorandum) in an effort to again align the CWA 404 
program with Swampbuster. The 2005 Memorandum provided that, 
``certified [prior converted] determination made by [USDA] remains 
valid as long as the area is devoted to an agricultural use. If the 
land changes to a non-agricultural use, the [prior converted] 
determination is no longer applicable and a new wetland determination 
is required for CWA purposes.''
    The 2005 Memorandum did not clearly address the abandonment 
principle that the agencies had been implementing since the 1993 
rulemaking. The change in use policy was also never promulgated as a 
rule and was declared unlawful by one district court because it 
effectively modified the 1993 preamble language without any formal 
rulemaking process. New Hope Power Co. v. U.S. Army Corps of Eng'rs, 
746 F. Supp. 2d 1272, 1282 (S.D. Fla. 2010). Implementing the 2005 
Memorandum created other challenges for the agencies and the regulated 
community. For example, because the 2005 Memorandum did not clearly 
address whether or how the abandonment principles should be applied in 
prior converted cropland cases, neither the agencies nor the regulated 
community could be certain which approach would be applied to a 
specific case. If this proposed exclusion is finalized, the Army would 
take action to withdraw the 2005 Memorandum. It is the agencies' intent 
that this proposed rule will clarify the prior converted cropland issue 
and provide regulatory certainty.
    The following features also would not be ``waters of the United 
States'' under this proposed rule:
     Artificially irrigated areas, including fields flooded for 
rice or cranberry growing, that would revert to upland should 
application of irrigation water to that area cease (paragraph (b)(6));
     Artificial lakes and ponds constructed in upland 
(including water storage reservoirs, farm and stock watering ponds, 
settling basins, and log cleaning ponds) which are not identified in 
paragraph (a)(4) or (a)(5) of this section (paragraph (b)(7)); and
     Water-filled depressions created in upland incidental to 
mining or construction activity, and pits excavated in upland for the 
purpose of obtaining fill, sand or gravel (paragraph (b)(8)).

[[Page 4192]]

    Paragraphs (b)(6), (7), and (8) of the proposed rule identify 
features and waters that the agencies have identified as generally not 
``waters of the United States'' in previous preambles. The agencies 
intend that codifying these longstanding practices would further the 
agencies' goals of providing greater clarity and predictability for the 
regulated public and the regulators. Several of these exclusions use 
the phrase ``upland.'' In keeping with the goal of providing greater 
clarity, the agencies have proposed a definition of ``upland'' in 
paragraph (c)(13). It is important to note that a ``water of the United 
States'' would not be considered ``upland'' just because it lacks water 
at a given time. Similarly, an area may remain ``upland'' even if it is 
wet after a rainfall or flood event. Also, the upland requirement would 
not apply to all exclusions under paragraph (b). Those waters/features 
under proposed paragraph (b) that do contain the stipulation that they 
must be created in upland to be excluded must be created wholly in 
upland. Features not constructed wholly in upland could meet the 
proposed definition of ``waters of the United States,'' unless 
otherwise excluded under another part of paragraph (b). The agencies 
note that the mere interface between the excluded feature constructed 
wholly in upland and a jurisdictional water would not make that feature 
jurisdictional. For example, a ditch constructed wholly in upland that 
connects to a tributary would not be considered a jurisdictional ditch. 
Finally, a proposed excluded feature that develops wetland 
characteristics within the confines of the water/feature would remain 
excluded from the definition of ``waters of the United States.''
    In proposed paragraph (b)(7) regarding artificial lakes and ponds 
constructed in upland, the agencies have removed language regarding 
``use'' of the ponds, including the term ``exclusively,'' which were 
used in the 1986 and 1988 preambles. In most cases, the ``use'' of the 
pond is captured in its name. More importantly, the agencies recognize 
that artificial lakes and ponds are often used for more than one 
purpose and can have a variety of beneficial purposes, including water 
retention or recreation. The proposed exclusion reflects the agencies' 
practice and would ensure that waters the agencies have historically 
not treated as jurisdictional would not become so because of another 
incidental beneficial use. In the text of the proposed exclusion, the 
agencies are also clarifying that these features would not be excluded 
if they are jurisdictional impoundments because altering a water by 
impounding it would not change the water's jurisdictional status, 
consistent with longstanding agency practice. However, when an 
applicant receives a permit to impound a water of the United States in 
order to construct a waste treatment system (as excluded under 
(b)(11)), the agencies are affirmatively relinquishing jurisdiction 
over the resulting waste treatment system as long as it is used for 
this permitted purpose, consistent with longstanding practice. Also 
consistent with longstanding practice, waters upstream of the waste 
treatment system may still be considered jurisdictional where they meet 
the proposed definition of ``waters of the United States.''
    In proposed paragraph (b)(8), the proposed rule includes several 
refinements to the existing 1986 and 1988 preamble language related to 
the exclusion for water-filled depressions created in upland as a 
result of certain activities. In addition to construction activity, the 
agencies have also proposed to exclude water-filled depressions created 
in upland incidental to mining activity. This is consistent with the 
exclusion in the 2015 Rule and with the agencies' 1986 and 1988 
preambles, which generally excluded pits excavated for obtaining fill, 
sand or gravel, and the agencies believe there is no need to 
distinguish between features based on whether they are created by 
construction or mining activity.
    In proposed paragraph (b)(9), the agencies would exclude stormwater 
control features excavated or constructed in upland to convey, treat, 
infiltrate, or store stormwater runoff. The agencies' practice is to 
view stormwater control measures that are not built in ``waters of the 
United States'' as non-jurisdictional. Conversely, the agencies 
currently view some waters, such as channelized streams with 
intermittent or perennial flow, as jurisdictional even where used as 
part of a stormwater management system. Nothing in the proposed rule is 
intended to change that practice. Rather, this exclusion would clarify 
the appropriate limits of jurisdiction relating to these systems. A key 
element of the exclusion is whether the feature or control system was 
built in upland and whether it conveys, treats, or stores stormwater. 
Certain features, such as curbs and gutters, may be features of 
stormwater collection systems, but have never been considered waters of 
the United States. Stormwater control features have evolved 
considerably over the past several years, and their nomenclature is not 
consistent, so in order to avoid unintentionally limiting the proposed 
exclusion, the agencies have not included a list of excluded features 
in the rule. The proposed rule is intended to exclude the diverse range 
of stormwater control features that are currently in place and may be 
developed in the future.
    Traditionally, stormwater controls were designed to direct runoff 
away from people and property as quickly as possible. Cities built 
systems to collect, convey, or store stormwater, using structures such 
as curbs, gutters, and sewers. Retention and detention stormwater ponds 
were built to store excess stormwater until it could be more safely 
released. More recently, treatment of stormwater has become more 
prevalent to remove pollutants before the stormwater is discharged. 
Even more recently, cities have turned to green infrastructure, using 
existing natural features or creating new features that mimic natural 
hydrological processes that work to infiltrate or evapo-transpirate 
precipitation, to manage stormwater at its source and keep it out of 
the conveyance system. These engineered components of stormwater 
management systems can address both flood control and water quality 
concerns, as well as provide other benefits to communities. This 
proposed rule is designed to avoid disincentives to this 
environmentally beneficial trend in stormwater management practices.
    The agencies propose to exclude wastewater recycling structures 
constructed in upland, such as detention, retention and infiltration 
basins and ponds, and groundwater recharge basins in paragraph (b)(10). 
This proposed exclusion clarifies the agencies' current practice that 
waters and water features used for water reuse and recycling would not 
be jurisdictional when constructed in upland. The agencies recognize 
the importance of water reuse and recycling, particularly in areas like 
California and the Southwest where water supplies can be limited and 
droughts can exacerbate supply issues. This proposed exclusion responds 
to numerous commenters and is intended to avoid discouraging or 
creating barriers to water reuse and conservation. Many commenters 
noted the growing interest in and commitment to water recycling and 
reuse projects. Detention and retention basins can play an important 
role in capturing and storing water prior to beneficial reuse. 
Similarly, groundwater recharge basins and infiltration ponds are 
becoming more prevalent tools for water reuse and recycling. These 
features are used to

[[Page 4193]]

collect and store water, which then infiltrates into groundwater via 
permeable soils. Though these features are often created in upland, 
they are also often located in close proximity to tributaries or other 
larger bodies of water. The proposed exclusion in paragraph (b)(10) 
would codify longstanding agency practice and encourage water 
management practices that the agencies recognize are important and 
beneficial.
    Proposed paragraph (b)(11) would exclude waste treatment systems. 
The waste treatment system exclusion has existed since 1979, and the 
agencies are continuing such exclusion under this proposal. The 
agencies are also for the first time proposing a definition of ``waste 
treatment system'' under paragraph (c)(14) to clarify which waters and 
features are considered part of a waste treatment system and therefore 
excluded. Continuing current practice, any entity with a waste 
treatment system would need to comply with the CWA by obtaining a 
section 404 permit if constructed in waters of the United States, and a 
section 402 permit for discharges from the waste treatment system into 
waters of the United States. The agencies intend for this exclusion to 
apply only to waste treatment systems constructed in accordance with 
the requirements of the CWA and to all waste treatment systems 
constructed prior to the 1972 CWA amendments. One proposed ministerial 
change is the deletion of a cross-reference in the current language to 
an EPA regulation that no longer exists.
    Some pre-proposal commenters suggested the agencies clarify how the 
waste treatment system exclusion is currently implemented. Many 
comments raised questions about stormwater systems and wastewater reuse 
and whether such facilities are considered part of a complete waste 
treatment system for purposes of the waste treatment system exclusion. 
For clarity, the agencies propose related exclusions in paragraphs 
(b)(9) and (b)(10) and propose to add settling basins and cooling ponds 
to the definition of ``waste treatment system'' in paragraph (c)(14). 
The agencies note that cooling ponds that are created under section 404 
in jurisdictional waters and that have section 402 permits are and 
would continue to be subject to the waste treatment system exclusion 
under the proposed rule. Cooling ponds created to serve as part of a 
cooling water system with a valid state permit constructed in waters of 
the United States prior to enactment of the 1972 amendments of the CWA 
and currently excluded from jurisdiction would also remain excluded 
under the proposed rule.
3. How might the agencies implement this approach?
    The agencies propose to include an exclusion for groundwater under 
paragraph (b)(2), including groundwater drained through subsurface 
drainage systems. The agencies added the subsurface drainage 
clarification to specify that even when groundwater is channelized in 
subsurface systems, like tile drains used in agriculture, it still 
remains subject to the exclusion. However, the exclusion would not 
apply to surface expressions of groundwater, such as where groundwater 
emerges on the surface and becomes baseflow in intermittent or 
perennial streams.
    The proposed rule would exclude ephemeral features and diffuse 
stormwater run-off including directional sheet flow over upland under 
proposed paragraph (b)(3). This exclusion would include ephemeral 
flows, swales, and erosional features, including gullies and rills, as 
non-jurisdictional features. Tributaries can be distinguished from 
these excluded features by the flow regime proposed in the definition 
of ``tributary.'' Tributaries would have intermittent or perennial flow 
while these proposed excluded features would have ephemeral flow. It 
should be noted that some streams are colloquially called ``gullies'' 
or the like even when they exhibit the characteristics of a tributary; 
regardless of the name they are given locally, waters that meet the 
definition of ``tributary'' would not be excluded ephemeral features.
    With respect to implementing the proposed ditch exclusions 
consistent with the proposed rule, that reach of a ditch that meets any 
of the three categories in paragraph (a)(3) would be considered a 
``water of the United States.'' The jurisdictional status of other 
reaches of the same ditch would have to be assessed based on the 
specific facts and under the terms of the proposed rule to determine 
the jurisdictional status of the ditch. For example, a ditch that is 
constructed in a tributary would not be an excluded ditch under 
proposed paragraph (b)(4) so long as it satisfies the conditions of the 
tributary definition, and a ditch is constructed in a tributary when at 
least a portion of the tributary's original channel has been physically 
moved. Further, the exclusion of a ditch does not affect the possible 
status of the ditch as a point source. The agencies believe the 
proposed ditch exclusion included in the proposed rule would address 
the majority of irrigation and drainage ditches, including most 
roadside and other transportation ditches, as well as agricultural 
ditches.
    For the proposed prior converted cropland exclusion, the agencies 
propose to clarify that when cropland has been abandoned and wetlands 
have returned, any prior converted cropland designation for that site 
would no longer be valid for purposes of the CWA. In general, the 
Corps' current practice has been to defer to certifications of prior 
converted cropland made by the USDA for areas in agricultural use; but 
in instances when land has been proposed to change from agricultural to 
non-agricultural use, the Corps has made new jurisdictional 
determinations, regardless of any previous designation of prior 
converted cropland or if an actual change in use has occurred. In other 
instances when cropland may have been abandoned, the Corps may apply 
the test from the 1993 preamble. This proposed rule would clarify that 
the Corps would only apply abandonment principles consistent with the 
1993 preamble and would no longer apply the change in use analysis. 
Under the proposed rule, the Corps must first determine if the land has 
been ``abandoned.'' Prior converted cropland will be considered 
abandoned if it is not used for, or in support of, agricultural 
purposes at least once in the immediately preceding five years. If the 
Corps determines that the land is abandoned, then it must evaluate the 
current condition of the land to determine whether wetlands conditions 
have returned. If wetlands are currently present on the property, the 
Corps must determine whether the wetlands are waters of the United 
States, consistent with this proposed rule.
    As the term ``prior converted cropland'' suggests, and as stated in 
the preamble to the 1993 Rule, land properly designated prior converted 
cropland has typically been so extensively modified from its prior 
condition that it no longer exhibits wetland hydrology or vegetation, 
and no longer performs the functions it did in its natural and original 
condition as a wetland. 58 FR 45032. It is often altered and degraded, 
with long-term physical and hydrological modifications that 
substantially reduce the likelihood of reestablishment of hydrophytic 
vegetation. Consistent with longstanding Corps policy and wetland 
delineation procedures, if a former wetland has been lawfully 
manipulated to the extent that it no longer exhibits wetland 
characteristics under normal circumstances, it would not be a 
jurisdictional wetland under the CWA. The altered nature of prior 
converted

[[Page 4194]]

cropland and its conditions constitute the ``normal circumstances'' of 
such areas. The agencies expect the majority of prior converted 
cropland in the nation to fall into this category and not be subject to 
CWA regulation, even after it is abandoned.
    However, at least some abandoned prior converted cropland may, 
under normal circumstances, meet the proposed definition of 
``wetlands'' under paragraph (c)(15). To determine whether wetland 
characteristics are present under ``normal circumstances,'' and whether 
the site contains waters of the United States as defined under this 
proposed rule, the agencies could, pursuant to existing regulations and 
guidance, and in accordance with this proposed rule, prepare a new 
jurisdictional determination for abandoned prior converted cropland. 
Such a determination would also evaluate whether the wetland is 
adjacent within the meaning of paragraph (c)(1) of this proposed rule.
    The agencies consider rulemaking to be appropriate here in order to 
clarify the definition of ``prior converted cropland'' and to provide 
regulatory certainty over when such lands are no longer eligible for 
the CWA exclusion. The USDA is responsible for making the determination 
as to whether land is prior converted cropland for its program 
purposes, which the agencies would adopt for purposes of the prior 
converted cropland exclusion under this proposed rule. The EPA and the 
Corps enforce the prior converted cropland exclusion for CWA purposes 
and identify whether lands that are no longer prior converted cropland 
may be waters of the United States. The EPA and the Corps intend to 
consult with other federal agencies as appropriate, including USDA, 
when evaluating whether a parcel of land may no longer be eligible for 
the CWA prior converted cropland exclusion. The agencies' 
implementation of the proposed prior converted cropland exclusion for 
CWA regulatory purposes does not affect USDA's administration of the 
Swampbuster program or a landowner's eligibility for benefits under 
that program.
    In paragraph (b)(6), the agencies propose to clarify their 
longstanding view that the artificial irrigation exclusion would only 
apply to the specific land being directly artificially irrigated, 
including fields flooded for rice or cranberry growing, which would 
revert to upland should artificial irrigation cease; it is not the case 
that all waters within watersheds where irrigation occurs would be 
excluded. Historically, the agencies have taken the position that ponds 
for rice growing are generally not considered waters of the United 
States, as reflected in the 1986 preamble and the 2015 Rule. See 51 FR 
41217. In the past, the agencies have considered those under the 
artificial lakes or ponds exclusion but propose today to include them 
in the artificial irrigation category as any wetland crop species, such 
as rice and cranberry operations, is typically supplied with artificial 
flow irrigation or similar mechanisms. The agencies take comment on 
whether this approach is better aligned with existing practices or if 
rice and cranberry operations should remain in the artificial lakes and 
ponds exclusion.
    In the proposed exclusion at (b)(7) for artificial lakes or ponds, 
the agencies have also proposed to add farm ponds, log cleaning 
ponds,\33\ and cooling ponds to the list of excluded ponds in the rule 
for additional clarity. Artificial lakes and ponds created in upland 
and not subject to jurisdiction under paragraphs (a)(4) or (a)(5) would 
be excluded. As proposed, this exclusion would also apply to artificial 
lakes and ponds created as a result of impounding non-jurisdictional 
waters or features. Conveyances created in upland that are physically 
connected to and are a part of the proposed excluded feature would also 
be excluded. The agencies emphasize that ponds that are proposed to be 
excluded from ``waters of the United States'' could, in some 
circumstances, be point sources of pollutants subject to section 301 of 
the Act.
---------------------------------------------------------------------------

    \33\ Log cleaning ponds are used to float logs for removal of 
twigs, branches, and large knots.
---------------------------------------------------------------------------

    Under proposed paragraph (b)(8), the proposed rule would exclude 
water-filled depressions created in upland incidental to mining or 
construction activity, and pits excavated in upland for the purpose of 
obtaining fill, sand, or gravel. In addition to construction activity, 
the agencies have proposed to exclude water-filled depressions created 
in upland incidental to mining activity. Since pits excavated in upland 
for the purpose of obtaining fill, sand, or gravel, which are forms of 
mining, were not considered to be ``waters of the United States'' as 
described in the 1986 and 1988 preambles, the agencies believe mining 
activities should also be explicitly excluded. This is consistent with 
the 2015 Rule. In addition, through this proposed exclusion the 
agencies intend to make clear that such water-filled depressions and 
pits would typically not become ``waters of the United States.''
    The agencies also propose to exclude in paragraph (b)(9) stormwater 
control features excavated or constructed in upland to convey, treat, 
infiltrate or store stormwater run-off. As stated previously, the 
proposed rule is intended to exclude the diverse range of stormwater 
control features that are currently in place and may be developed in 
the future. This proposed exclusion does not cover ditches, as ditches 
would be addressed under paragraph (b)(4) of the proposed rule.
    Paragraph (b)(10) of the proposed rule clarifies that wastewater 
recycling structures constructed in upland would be excluded. The 
agencies propose to include in this exclusion detention and retention 
basins as well as groundwater recharge basins and infiltration ponds 
built for wastewater recycling. The proposed exclusion would also cover 
water distributary structures that are built in upland for water 
recycling. These features often connect or carry flow to other water 
recycling structures, for example a channel or canal that carries water 
to an infiltration pond. The agencies have not considered these water 
distributary systems jurisdictional.
    The existing exclusion for waste treatment systems moves to 
paragraph (b)(11). As discussed above, the agencies propose to not 
change the longstanding approach to implementing the waste treatment 
exclusion. As a result, the agencies would continue to apply the 
exclusion to systems that are treating water so as to meet the 
requirements of the CWA. Discharges from these systems to waters of the 
United States would continue to be subject to regulation by the section 
402 permitting program. Similarly, if a waste treatment system is 
abandoned or otherwise ceases to serve the treatment function for which 
it was designed, it would not continue to qualify for the exclusion.
    The agencies also considered other exclusions recommended by 
stakeholders that were not added to the proposed rule. The agencies did 
not propose these additional exclusions because they were either so 
broadly characterized as to introduce significant confusion and 
potentially exclude waters that the agencies have consistently 
determined should be covered as ``waters of the United States,'' they 
were so site-specific or activity-based that they did not warrant 
inclusion in the nationally-applicable definition, or they were covered 
by another exclusion in the proposed rule.
    It is important to note that while the waters and features listed 
in the proposed exclusions would not be ``waters of the United 
States,'' some of

[[Page 4195]]

them may convey perennial or intermittent flow to a downstream 
jurisdictional water, so that portions of a tributary upstream and 
downstream of the excluded water may meet the definition of 
``tributary'' at (c)(11). For example, when water from a tributary is 
moved into another jurisdictional water through an excluded ditch, the 
ditch itself would be excluded from jurisdiction under the proposed 
rule but the tributary upstream and downstream of such break would 
remain ``waters of the United States.'' Excluded geographic features, 
such as ditches, may function as ``point sources'' under CWA section 
502(14), so that discharges of pollutants to navigable waters through 
these features would be subject to other parts of the CWA (e.g., CWA 
section 402).
4. What are specific issues upon which the agencies are seeking 
comment?
    The agencies seek comment on all aspects of the proposed 
exclusions. In addition, the agencies solicit comment on whether they 
should enumerate additional specific exclusions for the purposes of 
clarity, or whether proposed paragraphs (a) and (b) are sufficiently 
clear as to account for all of the agencies' intended jurisdictional 
and non-jurisdictional waters. For example, features that move water 
(particularly in the arid West) that do not eventually reconnect into a 
tributary or other jurisdictional water would not be jurisdictional and 
therefore do not need their own specific exclusion. These features 
would not meet the definition of ``tributary'' or may meet the 
currently proposed ditch exclusion as an artificial conveyance of 
water. However, the agencies seek comment on the jurisdictional status 
of features (other than the ditches the agencies currently propose to 
exclude) whose purpose is to move water and which do eventually 
reconnect to the tributary system.
    Further, the agencies seek comment on the clarity of the 
groundwater exclusion in proposed paragraph (b)(2) and ask commenters 
to consider whether the exclusion could instead read, ``groundwater, 
including diffuse or shallow subsurface flow and groundwater drained 
through subsurface drainage systems.'' The agencies recognize that 
unique groundwater situations such as shallow aquifers and tile 
drainage systems exist around the country and welcome comments on the 
parameters of the groundwater exclusion and any implementation issues 
that may arise.
    With respect to the proposed exclusion for ditches, the agencies 
solicit comment on whether certain ditches excavated in upland but with 
perennial or intermittent flow to an (a)(1) through (5) water should be 
treated as a jurisdictional tributary and why, and if so, what flow 
regime would apply (e.g., perennial only or both perennial and 
intermittent). Recognizing that excluded ditches must be used to convey 
water, the agencies also seek comment on whether the exclusion for 
ditches should instead focus on particular ditch use, such as roadside, 
railway, agriculture, irrigation, water supply, or other similar uses, 
and if so, why. As discussed in Section III.E, the agencies are 
soliciting comment on available tools to help identify whether a 
``ditch'' is artificial or whether it was constructed in a tributary or 
adjacent wetland.
    The agencies solicit comment on the proposed exclusion of prior 
converted cropland that uses the abandonment principle to determine 
whether prior converted cropland would be subject to CWA jurisdiction 
or if the agencies should apply the change in use analysis. The 
agencies also solicit comment on procedures that may be useful in 
implementing the proposed exclusion for prior converted cropland. In 
particular, the agencies solicit comment as to what constitutes ``for, 
or in support of, agricultural purposes'' as the term applies to the 
proposed prior converted cropland definition in this proposal. The 
agencies also seek comment on the kind of documentation a landowner 
must maintain to demonstrate that cropland has not been abandoned, or 
in the alternative, that the land has been used for, or in support of, 
agricultural purposes at least once in the immediately preceding five 
years. The agencies also solicit comment on what evidence, other than a 
USDA determination, the agencies should evaluate and rely upon to 
determine if cropland is eligible for the prior converted cropland 
exclusion. Finally, the agencies solicit comment on whether the five-
year timeframe for maintaining agricultural purposes is appropriate.
    The agencies also request comment on whether the proposed exclusion 
for artificially irrigated areas should include fields flooded to 
support the production of other wetland crop species in addition to 
rice and cranberries. Additionally, the agencies seek comment on 
whether the proposed artificially irrigated areas exclusion should be 
expanded to include areas flooded to support aquaculture, such as 
crayfish production.
    The agencies also seek comment on whether the waters and features 
proposed to be excluded in paragraphs (b)(7), (b)(8), (b)(9), and 
(b)(10) must be constructed wholly in upland, not just in upland as 
provided in the proposed regulatory text, in order for the exclusion to 
apply and how such a requirement would affect the utility of these 
proposed exclusions. The agencies also request comment on whether the 
proposed exclusion in paragraph (b)(9) for stormwater control features 
should be expanded or clarified to include permitted municipal separate 
storm sewer systems (MS4s). If so, the agencies request comment on 
whether the exclusion would apply to the entire MS4 or limited portions 
thereof. The agencies also request comment on how they might implement 
such an exclusion.
    The agencies intend for the exclusion in paragraph (b)(11) to apply 
only to lawfully constructed waste treatment systems. The agencies 
solicit comment on whether greater clarity is needed by including in 
the rule text that the exclusion only applies to ``lawfully constructed 
waste treatment systems.''

I. Summary of Proposed Rule as Compared to the 1986 and 2015 
Regulations

    The agencies are proposing a definition of ``waters of the United 
States'' that they consider to be superior to both the 1986 and 2015 
Rules. The agencies are proposing to revise previous regulatory 
definitions of this term to distinguish between water that is a ``water 
of the United States'' subject to Federal regulation under the CWA and 
water or land that is subject to exclusive State or tribal 
jurisdiction, consistent with the scope of jurisdiction authorized 
under the CWA and the direction in that Act to ``recognize, preserve, 
and protect the primary responsibilities and rights of States to . . . 
plan the development and use (including restoration, preservation, and 
enhancement) of land and water resources . . . .'' 33 U.S.C. 1251(b). 
The Supreme Court has recognized that new administrations may 
reconsider the policies of their predecessors so long as they provide a 
reasonable basis for the change in approach. Nat'l Ass'n of Home 
Builders v. EPA, 682 F.3d 1032, 1038 & 1043 (D.C. Cir. 2012), citing 
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-15 (2009) 
(Rehnquist, J., concurring in part and dissenting in part). The 
agencies intend that the proposed revised interpretation of the Federal 
regulatory scope of the CWA would resolve longstanding confusion over 
broad and unclear definitions of ``waters of the United States.''
    The agencies propose to replace the 2015 Rule for the reasons 
discussed in the Step 1 proposal and supplemental

[[Page 4196]]

notice of proposed rulemaking (SNPRM). See 83 FR 32227 (July 12, 2018). 
In addition, the agencies consider this proposal to adhere more closely 
than the 2015 Rule to the text of the CWA and its legislative history, 
to the scope of Congress' authority in promulgating the CWA, to the 
guiding principles that the Supreme Court has articulated in Riverside 
Bayview, SWANCC, and Rapanos for interpreting the reach of the CWA, and 
because it provides a straightforward definition that would be easier 
to implement than the 2015 Rule. As discussed in Section II of the 
preamble, this proposed definition of ``waters of the United States'' 
reflects the ordinary meaning of the term ``waters,'' such as oceans, 
rivers, and lakes, as opposed to, as discussed in the Step 1 SNPRM, for 
example, ephemeral geographic features that are dry almost all of the 
year, as well as nonnavigable, isolated waters as the 2015 Rule would 
regulate.
    The agencies consider the proposed definitions of ``tributary'' and 
``adjacent wetlands'' to be more consistent with the Supreme Court's 
interpretation of the agencies' authority than the scope of ``waters of 
the United States'' under the 2015 Rule. Congress' traditional commerce 
power over navigation extends beyond waters traditionally considered 
navigable, but it is not unlimited. This proposed interpretation of the 
scope of ``waters of the United States'' would adhere more closely to 
the limits of Congress' authority over navigable waters than the 2015 
Rule, which allows for jurisdiction over a range of ephemeral waters 
that meet that regulation's definition of ``tributary'' (as well as 
physically remote isolated wetlands and other waters) that may be 
located at great distances from traditional navigable waters, so long 
as they have indicators of a bed, banks, and ordinary high-water mark 
and eventually contribute flow to a navigable water.
    In addition, this proposal would also adhere more closely than the 
2015 Rule to the statute and legislative history of the Act, including 
the policy articulated in CWA section 101(b) that States should 
maintain primary responsibility over land and water resources. 33 
U.S.C. 1251(b). As noted in the Step 1 SNPRM, many commenters on the 
2015 Rule indicated that the potential breadth of the 2015 Rule could 
interfere with State and local land use planning. They expressed 
particular concern that the 2015 Rule's use of the 100-year floodplain 
as a factor to establish jurisdiction and the extension of jurisdiction 
potentially to water features as far as 4,000 feet from a covered 
tributary, traditional navigable water, interstate water, or 
territorial sea extended into the regulatory domain of States, Tribes, 
and local governments. This proposed definition of ``waters of the 
United States,'' which would limit CWA jurisdiction over rivers and 
streams to those that contribute perennial or intermittent flow to 
traditional navigable waters or territorial seas in a typical year, 
certain lakes and ponds, and wetlands abutting or having a direct 
hydrologic surface connection to other jurisdictional waters in a 
typical year, would restore the authority of States, Tribes, and local 
governments over large swaths of lands and waters that they have 
traditionally managed based on the preferences of their citizens. See 
SWANCC, 531 U.S. at 174.
    The agencies believe that this proposal is also more consistent 
with Rapanos than the 2015 Rule. It reflects the key concepts in the 
plurality opinion that limited jurisdiction to relatively permanent 
waters and wetlands with a continuous surface connection to those 
waters, 547 U.S. at 742, 751 n.13, as well as addressing Justice 
Kennedy's concern with respect to regulation of wetlands adjacent to 
``drains, ditches, and streams remote from any navigable-in-fact water 
and carrying only minor water volumes towards it,'' id. at 781. The 
plurality and Justice Kennedy both agreed in principle that the 
definition of ``waters of the United States'' must consider: (1) The 
connection of the wetland to the tributary; and (2) the status of the 
tributary with respect to downstream traditional navigable waters. The 
plurality refers to the necessary connection of a wetland to a 
tributary as a ``continuous surface connection'' or ``continuous 
physical connection,'' as demonstrated in Riverside Bayview. Id. at 
742, 751 n.13. Justice Kennedy states that the Act requires a water or 
wetland have a connection in the form of a ```significant nexus' to 
waters that are or were navigable in fact or that could reasonably be 
so made.'' Id. at 759. Justice Kennedy recognized that ``the connection 
between a nonnavigable water or wetland and a navigable water may be so 
close, or potentially so close, that the Corps may deem the water or 
wetland a `navigable water' under the Act. In other instances, as 
exemplified by SWANCC, there may be little or no connection.'' Id. at 
767. The agencies are particularly concerned that the 2015 Rule's 
reading of Justice Kennedy's significant nexus test exceeds the 
agencies' authority under the Act, for the reasons discussed in the 
Step 1 SNPRM.
    For example, as the Step 1 SNPRM explains, Justice Kennedy wrote 
that adjacent ``wetlands possess the requisite nexus, and thus come 
within the statutory phrase `navigable waters,' if the wetlands, either 
alone or in combination with similarly situated lands in the region, 
significantly affect the chemical, physical, and biological integrity 
of other covered waters more readily understood as `navigable.' '' Id. 
at 780. The opinion does not define the terms ``in the region'' or 
``similarly situated,'' but it is reasonable to presume that that 
Justice Kennedy did not intend ``similarly situated'' to be synonymous 
with ``all'' waters in a region. The 2015 Rule, however, effectively 
applied the significant nexus test to lakes, ponds, and other waters, 
not just wetlands, either alone or in combination with other waters in 
an entire watershed. See, e.g., 80 FR 37106. The agencies are concerned 
that this broad reading of the significant nexus test relies too 
heavily on considerations that Justice Kennedy expresses regarding the 
interconnected nature of waters but fails to balance those 
``environmental concerns'' with the ``limits in the statutory text'' 
the agencies cannot disregard. See 547 U.S. at 778. The agencies also 
do not think that the opinion of a single justice in a complex case 
should be the primary determinant of federal jurisdiction over 
potentially large swaths of aquatic resources, particularly an approach 
that relies on potentially subjective case-by-case application that 
reduces regulatory certainty for the regulated community and hinders 
straightforward implementation by regulatory agencies.
    The agencies also believe the definitions of ``tributary'' and 
``adjacent wetlands'' in this proposed rule better reflect the 
importance of the term ``navigable'' in ``navigable waters,'' id. at 
778-79, than did the analogous definitions in the 2015 Rule. This 
proposal would give effect to the term ``navigable'' by limiting 
jurisdiction to tributaries and wetlands that have a continuous 
physical connection, during some part of a typical year, to traditional 
navigable waters or the territorial seas. In contrast, under the 2015 
Rule, all features meeting the ``tributary'' definition, including 
ordinarily dry channels, are categorically jurisdictional no matter how 
small, remote, or frequently flowing, and all ``adjacent'' waters and 
wetlands, such as those located within 1,500 feet of the high tide line 
of an (a)(1) or (a)(3) water, are categorically jurisdictional. 
Additionally, the 2015 Rule provides that waters and wetlands as far as 
4,000

[[Page 4197]]

feet from an (a)(1) through (5) water are jurisdictional if they, 
either alone or in combination with other similarly situated waters in 
the region, significantly affect the chemical, physical, or biological 
integrity of an (a)(1) through (3) water. Such interpretations create 
considerable tension with Justice Kennedy's understanding of the term 
``significant nexus.'' See id. at 781-82 (``[I]n many cases wetlands 
adjacent to tributaries covered by [the Corps' 1986 tributary] standard 
might appear little more related to navigable-in-fact waters than were 
the isolated ponds held to fall beyond the Act's scope in SWANCC.''). 
The agencies are concerned that these expansive interpretations of key 
elements of the definition of ``waters of the United States'' in the 
2015 Rule may not comport with the CWA. See id. at 778. As the agencies 
described in the Step 1 SNPRM, the 2015 Rule may have failed to 
appropriately recognize that the science in the Connectivity Report, 
while informative and important to consider, is not dispositive in 
interpreting the statutory reach of ``waters of the United States,'' 
which is ultimately a legal determination based on the language and 
structure of the Act and applicable judicial precedent. Id.\34\
---------------------------------------------------------------------------

    \34\ In the 2015 Rule, the agencies acknowledged that science 
cannot dictate where to draw the line of federal jurisdiction. See, 
e.g., 80 FR 37060. Notwithstanding that qualifier, the agencies 
relied on the Connectivity Report extensively in establishing the 
2015 Rule's definition of ``waters of the United States.''
---------------------------------------------------------------------------

    The agencies are mindful that courts that have considered the 
merits of challenges to the 2015 Rule have similarly observed that the 
rule may conflict with Justice Kennedy's opinion in Rapanos, 
particularly the rule's definition of ``tributary.'' See North Dakota, 
127 F. Supp. 3d at 1056; Georgia, 2018 U.S. Dist. LEXIS 97223, at *17. 
Likewise, the Sixth Circuit stated in response to petitioners' ``claim 
that the Rule's treatment of tributaries, `adjacent waters,' and waters 
having a `significant nexus' to navigable waters is at odds with the 
Supreme Court's ruling in Rapanos'' that ``[e]ven assuming, for present 
purposes, as the parties do, that Justice Kennedy's opinion in Rapanos 
represents the best instruction on the permissible parameters of 
`waters of the United States' as used in the Clean Water Act, it is far 
from clear that the new Rule's distance limitations are harmonious with 
the instruction.'' In re EPA, 803 F.3d at 807 & n.3 (noting that 
``[t]here are real questions regarding the collective meaning of the 
[Supreme] Court's fragmented opinions in Rapanos''). This proposed 
tributary definition as a river or stream that contributes perennial or 
intermittent flow to a traditional navigable water or territorial sea 
in a typical year, better reflects the limits to the agencies' 
authority that the plurality, as well as Justice Kennedy, recognized in 
Rapanos.
    The proposed definition of ``adjacent wetlands'' in this 
rulemaking, which encompasses wetlands abutting or having a direct 
hydrologic surface connection to other jurisdictional non-wetland 
waters in a typical year also specifically reflects the Supreme Court's 
longstanding views on the scope of jurisdictional wetlands, as opposed 
to the far broader interpretation in the 2015 Rule. Since Riverside 
Bayview, the Court has held that the Corps could define ``waters of the 
United States'' to include wetlands ``actually abut[ting]'' navigable 
waters, but it has not extended its deference to an agency 
interpretation to encompass more physically remote wetlands. Rapanos, 
547 U.S. at 740, 741 n.10 (Scalia, J., plurality), citing Riverside 
Bayview, 474 U.S. at 135, and SWANCC, 531 U.S. 159. The 2015 Rule 
expanded the scope of jurisdictional wetlands well beyond those 
wetlands ``that form the border of or are in reasonable proximity to 
other waters of the United States,'' Riverside Bayview, 474 U.S. at 
134, quoting 42 FR 37128 (July 19, 1977), that the Supreme Court has 
long held to be a permissible exercise of authority of the CWA. For 
instance, the 2015 Rule defined ``adjacent'' and, in turn, 
``neighboring'' to include as categorically jurisdictional all waters 
located within the 100-year floodplain of an (a)(1) through (5) water 
and not more than 1,500 feet from the ordinary high water mark of such 
water. The agencies propose to correct this broad interpretation, 
thereby maintaining consistency with the Supreme Court's opinions and 
ensuring the agencies operate within the bounds of our Constitutional 
authority, see SWANCC, 531 U.S. at 172, as well as protecting the 
States' traditional authority over their waters and land use, and the 
right of the public to clear limits to agency authority.
    The proposed rule's specific tributary and adjacent wetlands 
definitions would eliminate the need for the case-specific significant 
nexus test that was required for many features after Justice Kennedy's 
concurring opinion in Rapanos and according to the agencies' Rapanos 
Guidance. The categorical treatment of all tributaries and adjacent 
wetlands, as defined by this proposal, will provide clarity to the 
regulated public regarding the jurisdictional status of such features 
and ease the administrative burden the agencies face in conducting a 
case-specific significant nexus analysis to complete many 
jurisdictional determinations under previous regulations and guidance.
    This proposal would also establish greater clarity with respect to 
the scope of CWA jurisdiction than the 2015 Rule. The Step 1 SNPRM 
described the widespread confusion regarding the reach of the 2015 
Rule. Filings in the Sixth Circuit demonstrate that petitioners 
representing the States in that case view the 2015 Rule as extending 
``jurisdiction to virtually every potentially wet area of the 
country.'' Opening Brief of State Petitioners at 15, 61, In re EPA, No. 
15-3751 (6th Cir. Nov. 1, 2016). In contrast, petitioners representing 
environmental organizations viewed the 2015 Rule as violating the CWA 
by failing to cover certain waters. Brief of Conservation Groups at 11, 
In re EPA, No. 15-3751 (6th Cir. Nov. 1, 2016). In addition to the 
differing interpretations of stakeholders, the litigation itself could 
lead to further uncertainty. A successful challenge to the 2015 Rule 
could result in a court order vacating the rule in all or part of the 
country, potentially contributing to the existing patchwork of legal 
regimes in effect in different parts of the country. This proposed 
definition of ``waters of the United States'' would establish bright 
line jurisdictional boundaries that are intended to be easily 
comprehensible and implementable by the regulated community, and would 
avoid the potentially extremely complex jurisdictional landscape that 
could result from litigation over the 2015 Rule.
    The agencies believe that the proposed rule would also be clearer 
than both the substantive content of the 1986 Rule and the way it has 
been implemented as a result of litigation. For the reasons discussed 
in the Step 1 proposal and SNPRM, the 1986 Rule, as interpreted by the 
Supreme Court and implemented through agency guidance, is preferable to 
the 2015 Rule. However, a clear, comprehensive regulation that 
encompasses the Supreme Court's interpretations and agency guidance is 
preferable to the 1986 Rule. The language of the original 1986 Rule 
leaves substantially more room for discretion and case-by-case 
variation than this proposal, particularly paragraph (a)(3) in the 1986 
regulation, which claims jurisdiction over waters that are used by 
interstate or foreign travelers for recreational or other purposes, 
with no reference to navigable waters. Following the Supreme Court's 
opinions on the definition of ``waters of the United States,'' 
particularly

[[Page 4198]]

SWANCC and Rapanos, the 1986 Rule cannot be implemented as promulgated, 
but rather it must be implemented taking into account the Court's 
holdings and agency guidance interpreting those cases. In the decade 
since the Rapanos decision, the agencies and the public have become 
familiar with this multi-layered interpretive approach, which is the 
reason that the agencies have proposed maintaining this regime during 
the process of developing and considering public comments on this 
proposal. Yet a codified definition of ``waters of the United States'' 
that incorporates Supreme Court caselaw and guidance, and is clear as 
to the scope of jurisdictional waters, certainly provides greater 
regulatory predictability than the 1986 regulations, as interpreted by 
the Supreme Court and implemented through agency guidance.
    This proposal more appropriately reflects the scope of the 
agencies' authority under the statute, the Constitution, the vital role 
of the States and Tribes in managing their land and water resources, 
and the need of the public for predictable, easily implementable 
regulations.

J. Placement of the Definition of Waters of the United States in the 
Code of Federal Regulations

    Consistent with existing placement of the definition of ``waters of 
the United States'' in the Code of Federal Regulations, the agencies 
propose to locate the proposed definition of ``waters of the United 
States'' at 33 CFR 328.3, 40 CFR 110.1, 112.2, 116.3, 117.1, 122.2, 
230.3, 232.2, 300.5, 401.11, and Appendix E to 40 CFR part 300. 
Alternatively, the agencies seek comment on whether the definition 
should be codified in just two places in the Code of Federal 
Regulations for the sake of simplicity, rather than in the eleven 
locations in which it currently appears. Following this alternate 
approach, the agencies would retain one definition in Title 33 of the 
Code of Federal Regulations, which implements the Corps' statutory 
authority, and one in Title 40, which generally implements EPA's 
statutory authority. The agencies are not aware of any implications 
that this alternate approach might have on program implementation aside 
from making references to the definition less confusing. The agencies 
solicit comment on any potential impacts this alternate placement 
approach could have on program implementation.

IV. State, Tribal and Federal Agency Datasets of ``Waters of the United 
States''

    During the extensive pre-proposal outreach to the general public 
and focused engagement with States and Tribes, the agencies heard from 
a number of States about their familiarity with waters within their 
borders and their expertise in aquatic resource mapping. As co-
implementers of CWA programs, they also emphasized the potential 
benefit of greater State and tribal involvement in jurisdictional 
determinations. Several States suggested the agencies consider their 
knowledge and increase the role of States and Tribes in identifying 
those waters that are ``waters of the United States.'' Stakeholders 
also indicated that maps could increase certainty and transparency 
regarding the data and methods used to determine which waters are 
jurisdictional and which waters are not.
    In response, the agencies are interested in advancing the 
development of state-of-the-art geospatial data tools through Federal, 
State and tribal partnerships to provide an enhanced, publicly-
accessible platform for critical CWA information, such as the location 
of federally jurisdictional waters, the applicability of State and 
tribal water quality standards, permitted facility locations, impaired 
waters, and other important features.
    Such mapped features would make it easier for agency field staff, 
the general public, property owners, permit-holders and others to 
understand the relationship between familiar geographical features and 
the overlay of CWA jurisdictional waters. For Federal, State and tribal 
agencies, such geospatial data sets could improve the administration of 
CWA programs and attainment of water quality goals. Geospatial datasets 
and resulting future maps that indicate which waters are likely subject 
to federal jurisdiction could allow members of the regulated community 
to more easily and quickly ascertain whether they may want to contact a 
government agency regarding the potential need for a CWA permit. These 
datasets, when fully developed, would promote greater regulatory 
certainty and relieve some of the regulatory burden associated with 
determining the need for a permit and play an important part in helping 
to attain the goals of the CWA. They could also eventually be used to 
identify in one layered geospatial map water quality standards, total 
maximum daily loads, water quality monitoring data, and other 
beneficial information.
    The agencies are seeking public input on possible approaches to 
developing or utilizing existing aquatic resource mapping, remote 
sensing technology, or satellite data in order to facilitate the 
implementation of this proposed definition of ``waters of the United 
States.'' Specifically, the agencies are interested in suggestions for 
how to create a regulatory framework that would authorize interested 
States, Tribes, and Federal agencies to develop for the agencies' 
approval geospatial datasets representing ``waters of the United 
States,'' as well as waters excluded from the definition and ``waters 
of the State'' or ``waters of the Tribe'' within their respective 
borders.
    The agencies anticipate that such geospatial dataset development 
would be optional and not a requirement. The agencies are not proposing 
such a framework today because they would like to engage more fully in 
discussions with States, Tribes, other Federal agencies, and other 
technical experts before developing a proposal. The agencies anticipate 
a possible future rulemaking that could propose a specific approach 
that would be informed by public comments and suggestions on this 
notice.
    State and tribal geospatial datasets would be unrelated to the 
ability of States or Tribes to establish their own jurisdiction over 
waters based on State or tribal law that may be broader than the CWA. 
They would also be unrelated to the subset of waters for which a State 
or Tribe could assume permitting responsibility for under the CWA, such 
as section 402 and section 404 permitting. In a separate rulemaking, 
the EPA intends to clarify the waters for which a State or Tribe could 
assume responsibility under section 404(g).
    Developing geospatial datasets of ``waters of the United States'' 
may raise a number of technical and process challenges and questions. 
This is why the agencies are soliciting public input on the feasibility 
of creating a geospatial dataset of jurisdictional waters to help 
inform the agencies' considerations rather than proposing a specific 
approach today. Below is a discussion of some of the technical and 
process considerations the agencies have anticipated. The public is 
encouraged to comment on these and other challenges and questions that 
might arise from geospatial datasets of CWA jurisdiction.
    Dataset development would likely be a longer-term activity 
involving collaboration among technical geospatial experts from 
Federal, State, tribal governments, and involving other

[[Page 4199]]

key stakeholders, such as consensus standards organizations, the 
private sector, and academia. The agencies are aware that other 
entities, including, but not limited to, the Advisory Committee on 
Water Information, which reports to the Department of the Interior; the 
National Hydrography Dataset program of the U.S. Geological Survey; the 
National Wetlands Inventory program of the U.S. Fish and Wildlife 
Service; the Risk Mapping, Assessment, and Planning program of the 
Federal Emergency Management Agency; the National Wetland Team of the 
Natural Resources Conservation Service; and others, possess geospatial 
data and expertise in matters of geospatial identification of water 
features. In addition, the agencies would anticipate drawing on the 
expertise and infrastructure of the standing Federal Geographic Data 
Committee (FGDC) for convening experts, resolving technical issues and 
vetting developments and innovative ideas.
    In the realm of geospatial data, the Federal government has sought 
to establish ``standards'' for geospatial data through the FGDC. The 
agencies expect that a final rule defining the scope of ``waters of the 
United States'' would be the policy with which any mapping effort would 
need to be consistent. The primary question the methods and data 
specifications would address is how to remotely identify the measurable 
hydrologic features that comprise the ``waters of the United States'' 
in order to create these geospatial datasets. The agencies recognize 
the need to provide specifications for the data in order to ensure that 
``waters of the United States'' datasets are consistent nationwide. 
These specifications would include the specific structure and content 
details for the dataset itself, such as the acceptable geographic or 
projected coordinate system(s), identification of all mandatory (and 
any optional) data fields to be populated, minimum FGDC-compliant 
metadata attributes, and acceptable file format(s).
    One approach the agencies could take is a future rulemaking 
following collaboration with technical experts as described above and 
prior to the States, Tribes, or Federal agencies creating such 
datasets. States, Tribes, and Federal agencies could then submit 
method(s) for creating a dataset which would be consistent with the 
revised definition of ``waters of the United States.'' The EPA and 
Corps would then review each proposed method in order to determine 
whether the method results in a complete and accurate representation of 
``waters of the United States'' within a dataset extent. Under this 
approach, any methods determined to result in complete and accurate 
datasets would be published in the Federal Register or through a public 
website, along with a statement of the geographic area(s) where use of 
each method is appropriate and approved for use. This approach would 
likely account for the variation in landscapes and data availability 
across the nation, would leverage the knowledge the Federal land 
management agencies, States and Tribes possess regarding their own 
geography, and could be completed sooner than if the agencies were to 
develop applicable methods first.
    The agencies solicit comment on this proposed approach and 
suggestions for alternative approaches that the agencies might consider 
as part of a future rulemaking. For example, how would the methods and 
datasets, once approved by the agencies, be most effectively 
communicated to the public? One option might be that, as part of the 
approval process, States, Tribes and Federal agencies undertake a 
public notice and comment process for proposed datasets prior to 
submitting the jurisdictional geospatial dataset to the EPA and the 
Corps for approval. With respect to review by EPA and the Corps, should 
there should be a requirement that the agencies approve or disapprove 
the dataset within a set number of days? As datasets would need to be 
updated periodically, the agencies also request comment on the 
appropriate process for updating datasets and a reasonable frequency 
for doing so such that the datasets effectively represent current 
conditions.
    The goal would be to develop datasets that graphically represent 
``waters of the United States'' or portions thereof, to which agencies' 
staff, the potentially regulated community, and others could refer to 
see waters that are presumptively jurisdictional under the CWA. No such 
dataset currently exists. The agencies anticipate that, for such a 
presumption, a geospatial dataset would need to be developed using a 
method approved by the EPA and the Corps, be within the specifications 
for the dataset, and be approved by the agencies to be of sufficient 
quality. Such a dataset would be subject to potential site-specific 
refinement in individual jurisdictional determinations to address, for 
example, the lateral extent of jurisdiction. This approval or 
disapproval could be subject to judicial review. Following approval, 
the agencies anticipate that individual waters could be added to or 
removed from a dataset based on site-specific jurisdictional 
determinations. Presently, jurisdictional determinations by the Corps 
are valid for five years, and the agencies anticipate these approved 
geospatial datasets would need to be updated at a reasonable frequency 
to ensure they reflect current conditions.
    As part of such an effort, the agencies would make public approved 
methods, specifications and the geospatial datasets at a centralized 
location. The agencies therefore solicit comment on appropriate 
features and attributes of the website that would publish this 
information, as well as any privacy considerations the agencies should 
understand. In order to provide a useful tool to the public, the 
agencies anticipate that each approved geospatial dataset would need to 
be viewable online via a web-based map, on a federally-maintained 
website. The EPA currently maintains a website at https://watersgeo.epa.gov/cwa/CWA-JDs/ that presents information on approved 
jurisdictional determinations made by the Corps and the EPA under the 
CWA since August 28, 2015. The agencies envision that in the future, 
this site or another site could provide access to a web-based map.
    Because the EPA and the Corps would review the methods used to 
generate the datasets for consistency with the definition of ``waters 
of the United States'' and an acceptable level of completeness and 
accuracy, the resulting State, tribal, and Federal agency datasets 
would not inappropriately delegate the authority to determine federal 
jurisdiction under the CWA. Under this proposal, the agencies would 
retain their current final authority regarding the scope of ``waters of 
the United States.''
    The agencies are interested in learning about experiences States, 
Tribes, and other Federal agencies have had with mapping aquatic 
resources and using this information for program implementation. What 
technical and financial resources were required by their past mapping 
efforts, and what challenges were faced in mapping various types of 
aquatic resources? Does past experience recommend an incremental 
approach, such that States, Tribes, and other Federal agencies start 
the process with more manageable first steps such as focusing on 
tributaries rather than all types of waters of the United States, or by 
focusing on a portion rather than or all of the watersheds or other 
defined areas within their borders? Under such an incremental approach, 
the States, Tribes, and other Federal agencies could establish datasets 
for additional waters over time. However, an incremental approach would 
require recognition that any approved dataset would not capture

[[Page 4200]]

all waterbody types and therefore the agencies would identify any 
limitations on the web map viewer to provide clarity. As the agencies 
engage with States, Tribes, other Federal agencies, and the public in a 
discussion of possible aquatic resource datasets, the agencies would 
like to better understand the level of interest in developing 
geospatial datasets of jurisdictional waters should such an option be 
available.

V. Overview of Supporting Analyses

    The agencies conducted a series of analyses to better understand 
the potential effects across CWA programs associated with a revised 
definition of ``waters of the United States.'' The analyses are 
contained and described more fully in the Resource and Programmatic 
Assessment for the Proposed Revised Definition of ``Waters of the 
United States'' and in the Economic Analysis for the Proposed Revised 
Definition of ``Waters of the United States.'' Copies of these 
documents are available in the docket for this action.
    As a preliminary matter, the agencies note that they are not aware 
of any map or dataset that accurately or with any precision portrays 
the scope of CWA jurisdiction at any point in the history of this 
complex regulatory program. Establishing a mapped baseline from which 
to assess regulatory changes is likewise impracticable at this time. As 
summarized in Section II, for example, what was understood about the 
potential scope of CWA jurisdiction changed in the 1970s, in the mid-
80s with Riverside Bayview and regulatory updates, in 2001 with the 
landmark SWANCC decision, in 2006 with the fractured Rapanos decision, 
in 2007 and 2008 with the agencies' attempts to discern the meaning of 
the Rapanos decision through guidance and throughout the ensuing decade 
of litigation that tested those interpretations, in 2015 with a major 
rulemaking to redefine the operative phrase ``waters of the United 
States,'' and throughout the complex litigation following that 
rulemaking. As the Chief Justice of the Supreme Court succinctly 
observed in 2016, ``[i]t is often difficult to determine whether a 
particular piece of property contains waters of the United States . . . 
.'' Army Corps of Eng'rs v. Hawkes Co., 136 S. Ct. at 1812. Given this 
history, the agencies are not aware of any means to quantify changes in 
CWA jurisdiction with any precision that may or may not occur as a 
result of this proposed rule. The agencies acknowledge that they faced 
criticism from many commenters regarding the accuracy and assumptions 
they made when attempting to estimate changes in jurisdiction for the 
economic analysis associated with the 2015 Rule.
    Within this complex framework, the agencies have attempted to look 
at available data to analyze the potential effects of this proposed 
definition across CWA programs, recognizing that there will be 
limitations with any approach. In their analyses, the agencies describe 
how the proposed regulation compares to the baseline of the 2015 Rule 
and an alternate baseline of pre-2015 practice (i.e., the pre-2015 
regulations as interpreted by the Supreme Court and implemented through 
agency guidance), both of which represent current practice in some 
areas of the country. The documents outline the agencies' assessment of 
the potential effects of the proposed definition on aquatic resources 
across the country and on CWA programs, and the Resource and 
Programmatic Assessment provides further information on programs 
addressing aquatic resource quality under other federal statutes. The 
agencies also researched current State laws and programs to better 
understand how States already regulate waters within their borders. 
This information was utilized throughout the agencies' analyses; the 
State descriptions may be found in Appendix B of the Resource and 
Programmatic Assessment.
    The agencies also identified relevant datasets and technical 
limitations for analyses of potential changes in jurisdiction for 
different types of aquatic resources. For the analyses, the agencies 
examined data records in the Corps' Operation and Maintenance Business 
Information Link, Regulatory Module (ORM2) database that documents 
Corps decisions regarding the jurisdictional status of various aquatic 
resource types (i.e., jurisdictional determinations). The aquatic 
resource types used in ORM2 generally track the Rapanos Guidance (e.g., 
relatively permanent waters) but do not directly correlate with the 
terms used in the proposed rule, with limited exceptions. The agencies 
attempted to use publicly-available data from national datasets (e.g., 
the National Hydrography Dataset (NHD) at High Resolution and the 
National Wetlands Inventory (NWI)) to assess the potential extent of 
types of waters whose jurisdictional status might change as a result of 
the proposed rule. While the NHD and NWI datasets are widely used and 
recognized as the most comprehensive national datasets that generally 
map waters and wetlands, they are neither designed nor able to portray 
jurisdictional waters under the CWA. Therefore, they have technical 
limitations that would affect the agencies' analyses, as more fully 
described in the Resource and Programmatic Assessment and Economic 
Analysis for this proposal. Because of these limitations and the 
uncertainties in the way in which States or Tribes might respond 
following a change in the definition of ``waters of the United 
States,'' many of the potential effects of the proposed rule are 
discussed qualitatively, and some are discussed quantitatively where 
possible.
    For the Economic Analysis, the agencies applied a two-stage 
analysis to make the best use of limited local and national level water 
resources information in their effort to assess the potential 
implications of this proposed rule. The agencies believe that the 
outputs of this two-stage analysis are the best way to illustrate the 
potential overall impact of the proposed rule against the baseline of 
the 2015 Rule being in effect nationwide (i.e., the sum effect of both 
stages) and of the 2015 Rule not being in effect (i.e., second stage 
only). The agencies acknowledge that determining what may happen 
following the issuance of a new regulation requires making various 
assumptions, which are discussed throughout the analyses.
    The first stage of the Economic Analysis (hereinafter Stage 1) 
assesses the potential impacts of moving from the 2015 Rule to the pre-
2015 practice baseline (i.e., repealing the 2015 Rule and recodifying 
the prior regulations). For the Stage 1 analysis, the agencies used the 
original 2015 Rule economic analysis as a starting point and developed 
a quantitative assessment limited to Stage 1. However, several 
significant changes to the 2015 Rule analysis have been made in the 
Stage 1 analysis to account for existing State laws and programs that 
regulate water and potential State governance responses, as well as to 
account for better information used to assess the potential benefits 
and costs of the Stage 1 effects. The agencies developed several 
scenarios using different assumptions about potential State regulation 
of waters to provide a range of costs and benefits. Under the scenario 
that assumes the fewest number of States regulating newly non-
jurisdictional waters, the agencies estimate the proposed rule would 
produce annual avoided costs ranging between $98 and $164 million and 
annual forgone benefits ranging between $33 to $38 million. When 
assuming the greatest number of States are already regulating newly 
non-jurisdictional waters, the agencies estimate there would be avoided 
annual costs ranging

[[Page 4201]]

from $9 to $15 million and annual forgone benefits are estimated to be 
approximately $3 million. Under the scenario that assumes no States 
will regulate newly non-jurisdictional waters, an outcome the agencies 
believe would be unlikely, the agencies estimate the proposed rule 
would produce annual avoided costs ranging from $165 and $343 million 
and annual forgone benefits ranging from $93 to $104 million.
    The second stage of the economic analysis (hereinafter Stage 2) 
consists of a series of qualitative analyses and three detailed case 
studies of moving from the pre-2015 practice to the proposal. The 
qualitative analysis is intended to provide information on the likely 
direction of the potential effects on CWA regulatory programs. In 
addition, the agencies conducted case studies in three major watersheds 
(Ohio River basin, Lower Missouri River basin, and Rio Grande River 
basin) to provide information for a quantitative assessment of the 
potential effects of the proposal. The case studies considered 
potential ecological effects, and their accompanying potential economic 
effects for programs implemented pursuant to sections 311, 402, and 404 
of the CWA. Because of data limitations, the agencies were only able to 
provide Stage 2 national-level estimates of the potential avoided 
permit and mitigation costs and forgone benefits for the CWA 404 
program. Using the same methodologies employed in the case studies and 
using a meta function benefits transfer to value forgone wetland 
benefits, the national annual avoided costs of the CWA 404 program are 
estimated to range from $28 million to $266 million and national annual 
forgone benefits from the CWA 404 program are estimated to range from 
$7 million to $47 million. When considering the full range of scenarios 
regarding potential State regulation of waters no longer considered 
jurisdictional under the proposal, the estimated national annual 
avoided costs of the CWA 404 program range from $28 million to $497 
million and national annual forgone benefits range from $7 million to 
$136 million.
    The agencies solicit comment on all aspects of the analyses 
performed, including the assumptions made and information used, and 
request that commenters provide any data that may assist the agencies 
in evaluating and characterizing potential effects of the proposed 
change of the definition of ``waters of the United States.'' For 
example, the agencies request comment on the suitability of the NHD and 
NWI datasets as tools for performing comparative analyses of revisions 
to the definition of ``waters of the United States,'' the datasets used 
(including how they were used) for purposes of the case studies and the 
national estimates of costs and benefits for CWA 404 program, and the 
appropriateness of the stated preference studies used to value 
household willingness to pay for changes in wetland acreage. The 
agencies also solicit comment on the utility of using focused case 
studies to help inform the agencies' analysis of a nationwide rule 
given the lack of comprehensive national datasets representing 
jurisdictional waters.

VI. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 13771: Reducing Regulation and Controlling 
Regulatory Costs

    Pursuant to Executive Order 13771 (82 FR 9339, February 3, 2017), 
this proposed rule is expected to be a deregulatory action.

B. Executive Order 12866: Regulatory Planning and Review; Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is an ``economically significant regulatory action'' 
that was submitted to the Office of Management and Budget (OMB) for 
review. Any changes made in response to OMB recommendations have been 
documented in the docket for this action. In addition, the agencies 
prepared an analysis of the potential costs and benefits associated 
with this action. This analysis is contained in Economic Analysis for 
the Proposed Revised Definition of ``Waters of the United States,'' 
which is available in the docket and briefly summarized in Section V. 
Additional analysis can be found in the Resource and Programmatic 
Assessment for the Proposed Revised Definition of ``Waters of the 
United States'' which is also available in the docket.

C. Paperwork Reduction Act

    This action does not impose any new information collection burden 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. OMB has 
previously approved the information collection activities contained in 
the existing regulations and has assigned OMB control numbers 2050-0021 
and 2050-0135 for the CWA section 311 program and 2040-0004 for the CWA 
section 402 program. For the CWA section 404 program, the current OMB 
approval number for information requirements is maintained by the Corps 
(OMB approval number 0710-0003). However, there are no new approval or 
application processes required as a result of this rulemaking that 
necessitate a new Information Collection Request (ICR).

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this proposed rule on 
small entities, ``small entity'' is defined as: (1) A small business 
that is a small industrial entity as defined in the U.S. Small Business 
Administration's size standards (see 13 CFR 121.201); (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district, or special district with a population of less than 
50,000; or (3) a small organization that is any not-for-profit 
enterprise that is independently owned and operated and is not dominant 
in its field.
    The purpose of the RFA is ``to fit regulatory and informational 
requirements to the scale of the businesses, organizations and 
governmental jurisdictions subject to the regulation.'' 5 U.S.C. 601. 
Small entities subject to this proposed rule are largely those entities 
whose activities are directly covered by the CWA sections 402, 404, and 
311 programs. The proposed rule is expected to result in fewer entities 
subject to these programs, and a reduced regulatory burden for many of 
the entities that will still be subject to these programs. As a result, 
small entities subject to these regulatory programs are unlikely to 
suffer adverse impacts as a result of regulatory compliance.
    As addressed in the Economic Analysis for the proposed rule, 
narrowing the scope of CWA regulatory jurisdiction over waters may 
result in a reduction in the ecosystem services provided by some 
waters, and as a result, some entities may be adversely impacted. Some 
business sectors that depend on habitat, such as those catering to 
hunters or anglers, or that require water treatment to meet production 
needs, could experience a

[[Page 4202]]

greater impact relative to other sectors. These changes in ecosystem 
services are likely to be small, infrequent, and dispersed over wide 
geographic areas, thereby limiting the significance of these impacts on 
these business sectors. In addition, States and Tribes may already 
address waters potentially affected by a revised definition, thereby 
reducing forgone benefits.
    The sector likely to be most impacted by the proposed rule are 
mitigation banks, and companies that provide restoration services. 
Because fewer waters would be subject to the CWA under the proposed 
rule than are subject to regulation under the 2015 Rule or pre-2015 
practice, there may be a reduction in demand for mitigation and 
restoration services under the section 404 permitting program. 
Assessing impacts to this sector is problematic, because this sector 
lacks a SBA small business definition, and many of the businesses that 
fall within this sector are also classified under various other NAICs 
categories. Furthermore, impacts to this sector would not be the direct 
result of these businesses complying with the proposed rule, rather 
they would be the indirect result of other entities no longer being 
required to mitigate for discharges of dredged or fill material into 
waters that would no longer be jurisdictional under the proposed rule. 
In addition, potential impacts would be lessened when accounting for 
State and tribal dredged and fill programs that would necessitate the 
purchase of mitigation credits. For a more detailed discussion see the 
RFA section of the Economic Analysis for the proposed rule.
    The agencies certify that this action will not have a significant 
economic impact on a substantial number of small entities under the 
RFA. In making this determination, the impact of concern is any 
significant adverse economic impact on small entities. An agency may 
certify that a rule will not have a significant economic impact on a 
substantial number of small entities if the rule relieves regulatory 
burden, has no net burden or otherwise has a positive economic effect 
on the small entities subject to the rule. This is a deregulatory 
action, and the burden on all entities affected by this proposed rule, 
including small entities, is reduced compared to the 2015 Rule and pre-
2015 practice. The agencies have therefore concluded that this action 
will relieve regulatory burden to small entities.

E. Unfunded Mandates Reform Act

    This proposed rule does not contain any unfunded mandate as 
described in the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538, and does not significantly or uniquely affect small 
governments. The proposed definition of ``waters of the United States'' 
applies broadly to CWA programs. The proposed action imposes no 
enforceable duty on any state, local or tribal governments or the 
private sector, and does not contain regulatory requirements that 
significantly or uniquely affect small governments.

F. Executive Order 13132: Federalism

    Consulting with state and local government officials, or their 
representative national organizations, is an important step in the 
process prior to proposing regulations that may have implications for 
State and local governments under the terms of Executive Order 13132 
(64 FR 43255, August 10, 1999). The agencies undertook a 60-day 
Federalism consultation early in the process and then conducted 
additional outreach to States for this proposed rulemaking to ensure 
that the agencies could hear the perspectives on how the agencies might 
revise the definition of ``waters of the United States'' from our State 
co-regulators. All letters received by the agencies during Federalism 
consultation may be found on EPA's website at https://www.epa.gov/wotus-rule/federalism-consultation.
    State and local governments were consulted at the outset of rule 
development starting on April 19, 2017. The agencies held nineteen 
Federalism meetings between April 19 and June 16, 2017. Seventeen 
intergovernmental associations, including nine of the ten organizations 
identified in EPA's 2008 E.O. 13132 Guidance, attended the initial 
Federalism consultation meeting, as well as several associations 
representing State and local governments. Organizations in attendance 
included: The National Governors Association, the National League of 
Cities, the National Association of Counties, the U.S. Conference of 
Mayors, the Council of State Governments, the National Conference of 
State Legislatures, the County Executives of America, the National 
Association of Towns and Townships, the Environmental Council of the 
States, the Western Governors Association, the National Association of 
Clean Water Agencies, the Association of Clean Water Administrators, 
the National Association of State Departments of Agriculture, the 
Association of State Wetlands Managers, the Association of State 
Floodplain Managers, the National Water Resources Association, the 
State/Local Legal Center, and several members of EPA's Local Government 
Advisory Committee (LGAC).
    The LGAC met 10 times during this period to address the charge 
given to its members by the EPA Administrator on a revised rule and 
completed a report addressing the questions outlined in their charge. 
The July 14, 2017, final report can be obtained here: https://www.epa.gov/sites/production/files/2017-07/documents/lgac-final-wotusreport-july2017.pdf.
    The agencies held two additional webinars, the first for Tribes, 
States, and local governments on December 12, 2017; and, one for States 
on February 20, 2018. In addition, one in-person meeting to seek 
technical input on the proposed rule was held with a small group of 
nine states (Arizona, Arkansas, Florida, Iowa, Maryland, Minnesota, 
Oregon, Pennsylvania, and Wyoming) on March 8 and 9, 2018.
    These meetings and the letters provided by representatives provide 
a wide and diverse range of interests, positions, comments, and 
recommendations to the agencies. The agencies have prepared a report 
summarizing their consultation and additional outreach to state and 
local governments and the results of this outreach. A copy of the draft 
report is available in the docket (Docket Id. No. EPA-HQ-OW-2018-0149) 
for this proposed rule.
    Under the technical requirements of Executive Order 13132, the 
agencies have determined that this proposed rule may not have 
federalism implications but believe that the requirements of the 
Executive Order have been satisfied in any event.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    The EPA consulted with tribal officials under the EPA Policy on 
Consultation and Coordination with Indian Tribes early in the process 
of developing this action to permit them to have meaningful and timely 
input into its development. In the course of this consultation, the 
Department of the Army participated in aspects of the process.
    EPA initiated a tribal consultation and coordination process before 
proposing this rule by sending a ``Notification of Consultation and 
Coordination'' letter on April 20, 2017, to all of the 567 Tribes 
federally recognized at that time. The letter invited tribal leaders 
and designated consultation representatives to participate in the 
tribal consultation and coordination process. The agencies held two 
identical webinars concerning this matter for tribal representatives on

[[Page 4203]]

April 27 and May 18, 2017. Tribes and tribal organizations sent 43 pre-
proposal comment letters to the agencies as part of the consultation 
process. The agencies met with nine Tribes at a staff-level and with 
three Tribes at a leader-to-leader level, and additional meetings with 
Tribes are to be scheduled. The agencies continued engagement with 
Tribes after the end of the formal consultation, including at national 
update webinars on December 12, 2017 and February 20, 2018, and an in-
person Tribal Co-Regulators Workshop on March 6-7, 2018. The agencies 
have prepared a report summarizing the consultation and further 
engagement with tribal nations. This report, Summary Report of Tribal 
Consultation and Engagement for the Proposed Rule: Definition of 
``Waters of the United States'' (Docket Id. No. EPA-HQ-OW-2018-0149), 
is available in the docket for this proposed rule.
    This action may have tribal implications. However, it will neither 
impose substantial direct compliance costs on federally recognized 
tribal governments, nor preempt tribal law.

H. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    This action is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because the environmental health or safety risks 
addressed by this action do not present a disproportionate risk to 
children.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not 
likely to have a significant adverse effect on the supply, distribution 
or use of energy.

J. National Technology Transfer and Advancement Act

    This proposed rule does not involve technical standards. The 
agencies recognize, however, that if they pursue a separate rulemaking 
to establish a process for approving methodologies and geospatial 
datasets as discussed in Section III.H, there would be technical 
standards involved.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    This action is not subject to Executive Order 12898 (59 FR 7629, 
February 11, 1994) because there is no significant evidence of 
disproportionately high and adverse human health or environmental 
effects on minority populations, low-income populations, and/or 
indigenous peoples, as specified in Executive Order 12898.

List of Subjects

33 CFR Part 328

    Environmental protection, Administrative practice and procedure, 
Navigation (water), Water pollution control, Waterways.

40 CFR Part 110

    Environmental protection, Oil pollution, Reporting and 
recordkeeping requirements.

40 CFR Part 112

    Environmental protection, Oil pollution, Penalties, Reporting and 
recordkeeping requirements.

40 CFR Part 116

    Environmental protection, Hazardous substances, Reporting and 
recordkeeping requirements, Water pollution control.

40 CFR Part 117

    Environmental protection, Hazardous substances, Penalties, 
Reporting and recordkeeping requirements, Water pollution control.

40 CFR Part 122

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous substances, Reporting and 
recordkeeping requirements, Water pollution control.

40 CFR Part 230

    Environmental protection, Water pollution control.

40 CFR Part 232

    Environmental protection, Intergovernmental relations, Water 
pollution control.

40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, 
Hazardous substances, Hazardous waste, Intergovernmental relations, 
Natural resources, Occupational safety and health, Oil pollution, 
Penalties, Reporting and recordkeeping requirements, Superfund, Water 
pollution control, Water supply.

40 CFR Part 302

    Environmental protection, Air pollution control, Chemicals, 
Hazardous substances, Hazardous waste, Intergovernmental relations, 
Natural resources, Reporting and recordkeeping requirements, Superfund, 
Water pollution control, Water supply.

40 CFR Part 401

    Environmental protection, Waste treatment and disposal, Water 
pollution control.

    Dated: December 11, 2018.
Andrew R. Wheeler,
Acting Administrator, Environmental Protection Agency.
    Dated: December 11, 2018.
R.D. James,
Assistant Secretary for the Army (Civil Works), Department of the Army.

Title 33--Navigation and Navigable Waters

    For the reasons set forth in the preamble, the Corps of Engineers 
proposes to amend 33 CFR part 328 as follows:

PART 328--DEFINITION OF WATERS OF THE UNITED STATES

0
1. The authority citation for part 328 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.

0
2. Section 328.3 is revised to read as follows:


Sec.  328.3  Definitions.

    For the purpose of this regulation these terms are defined as 
follows:
    (a) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and 
its implementing regulations, subject to the exclusions in paragraph 
(b) of this section, the term ``waters of the United States'' means:
    (1) Waters which are currently used, or were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
the territorial seas and waters which are subject to the ebb and flow 
of the tide;
    (2) Tributaries of waters identified in paragraph (a)(1) of this 
section;
    (3) Ditches that satisfy any of the conditions identified in 
paragraph (a)(1) of this section, ditches constructed in a tributary or 
that relocate or alter a tributary as long as those ditches also 
satisfy the conditions of the tributary definition, and ditches 
constructed in an adjacent wetland as long as those ditches also 
satisfy the conditions of the tributary definition;
    (4) Lakes and ponds that satisfy any of the conditions identified 
in paragraph (a)(1) of this section, lakes and ponds that contribute 
perennial or intermittent flow to a water identified in paragraph 
(a)(1) in a typical year either directly or indirectly through a 
water(s) identified in paragraphs (a)(2) through (6) of this

[[Page 4204]]

section or through water features identified in paragraph (b) of this 
section so long as those water features convey perennial or 
intermittent flow downstream, and lakes and ponds that are flooded by a 
water identified in paragraphs (a)(1) through (5) of this section in a 
typical year;
    (5) Impoundments of waters identified in paragraphs (a)(1) through 
(4) and (6) of this section; and
    (6) Adjacent wetlands to waters identified in paragraphs (a)(1) 
through (5) of this section.
    (b) The following are not ``waters of the United States'':
    (1) Waters or water features that are not identified in paragraphs 
(a)(1) through (6) of this section;
    (2) Groundwater, including groundwater drained through subsurface 
drainage systems;
    (3) Ephemeral features and diffuse stormwater run-off, including 
directional sheet flow over upland;
    (4) Ditches that are not identified in paragraph (a)(3) of this 
section;
    (5) Prior converted cropland;
    (6) Artificially irrigated areas, including fields flooded for rice 
or cranberry growing, that would revert to upland should application of 
irrigation water to that area cease;
    (7) Artificial lakes and ponds constructed in upland (including 
water storage reservoirs, farm and stock watering ponds, and log 
cleaning ponds) which are not identified in paragraph (a)(4) or (5) of 
this section;
    (8) Water-filled depressions created in upland incidental to mining 
or construction activity, and pits excavated in upland for the purpose 
of obtaining fill, sand, or gravel;
    (9) Stormwater control features excavated or constructed in upland 
to convey, treat, infiltrate or store stormwater run-off;
    (10) Wastewater recycling structures constructed in upland, such as 
detention, retention and infiltration basins and ponds, and groundwater 
recharge basins; and
    (11) Waste treatment systems.
    (c) Definitions: In this section, the following definitions apply:
    (1) Adjacent wetlands. The term adjacent wetlands means wetlands 
that abut or have a direct hydrologic surface connection to a water 
identified in paragraphs (a)(1) through (5) of this section in a 
typical year. Abut means to touch at least at one point or side of a 
water identified in paragraphs (a)(1) through (5) of this section. A 
direct hydrologic surface connection occurs as a result of inundation 
from a paragraph (a)(1) through (5) water to a wetland or via perennial 
or intermittent flow between a wetland and a paragraph (a)(1) through 
(5) water. Wetlands physically separated from a paragraph (a)(1) 
through (5) water by upland or by dikes, barriers, or similar 
structures and also lacking a direct hydrologic surface connection to 
such waters are not adjacent.
    (2) Ditch. The term ditch means an artificial channel used to 
convey water.
    (3) Ephemeral. The term ephemeral means surface water flowing or 
pooling only in direct response to precipitation (e.g., rain or snow 
fall).
    (4) High tide line. The term high tide line means the line of 
intersection of the land with the water's surface at the maximum height 
reached by a rising tide. The high tide line may be determined, in the 
absence of actual data, by a line of oil or scum along shore objects, a 
more or less continuous deposit of fine shell or debris on the 
foreshore or berm, other physical markings or characteristics, 
vegetation lines, tidal gages, or other suitable means that delineate 
the general height reached by a rising tide. The line encompasses 
spring high tides and other high tides that occur with periodic 
frequency but does not include storm surges in which there is a 
departure from the normal or predicted reach of the tide due to the 
piling up of water against a coast by strong winds, such as those 
accompanying a hurricane or other intense storm.
    (5) Intermittent. The term intermittent means surface water flowing 
continuously during certain times of a typical year and more than in 
direct response to precipitation (e.g., seasonally when the groundwater 
table is elevated or when snowpack melts).
    (6) Ordinary high water mark. The term ordinary high water mark 
means that line on the shore established by the fluctuations of water 
and indicated by physical characteristics such as clear, natural line 
impressed on the bank, shelving, changes in the character of soil, 
destruction of terrestrial vegetation, the presence of litter and 
debris, or other appropriate means that consider the characteristics of 
the surrounding areas.
    (7) Perennial. The term perennial means surface water flowing 
continuously year-round during a typical year.
    (8) Prior converted cropland. The term prior converted cropland 
means any area that, prior to December 23, 1985, was drained or 
otherwise manipulated for the purpose, or having the effect, of making 
production of an agricultural product possible. EPA and the Corps will 
recognize designations of prior converted cropland made by the 
Secretary of Agriculture. An area is no longer considered prior 
converted cropland for purposes of the Clean Water Act when the area is 
abandoned and has reverted to wetland, as defined in paragraph (c)(15) 
of this section. Abandonment occurs when prior converted cropland is 
not used for, or in support of, agricultural purposes at least once in 
the immediately preceding five years. For the purposes of the Clean 
Water Act, the EPA Administrator shall have the final authority to 
determine whether prior converted cropland has been abandoned.
    (9) Snowpack. The term snowpack means layers of snow that 
accumulate over extended periods of time in certain geographic regions 
and high altitudes (e.g., in northern climes and mountainous regions).
    (10) Tidal waters and waters subject to the ebb and flow of the 
tide. The terms tidal waters and waters subject to the ebb and flow of 
the tide mean those waters that rise and fall in a predictable and 
measurable rhythm or cycle due to the gravitational pulls of the moon 
and sun. Tidal waters and waters subject to the ebb and flow of the 
tide end where the rise and fall of the water surface can no longer be 
practically measured in a predictable rhythm due to masking by 
hydrologic, wind, or other effects.
    (11) Tributary. The term tributary means a river, stream, or 
similar naturally occurring surface water channel that contributes 
perennial or intermittent flow to a water identified in paragraph 
(a)(1) of this section in a typical year either directly or indirectly 
through a water(s) identified in paragraphs (a)(2) through (6) of this 
section or through water features identified in paragraph (b) of this 
section so long as those water features convey perennial or 
intermittent flow downstream. A tributary does not lose its status as a 
tributary if it flows through a culvert, dam, or other similar 
artificial break or through a debris pile, boulder field, or similar 
natural break so long as the artificial or natural break conveys 
perennial or intermittent flow to a tributary or other jurisdictional 
water at the downstream end of the break. The alteration or relocation 
of a tributary does not modify its status as a tributary as long as it 
continues to satisfy the elements of this definition.
    (12) Typical year. The term typical year means within the normal 
range of precipitation over a rolling thirty-year period for a 
particular geographic area.
    (13) Upland. The term upland means any land area that under normal 
circumstances does not satisfy all three wetland delineation criteria 
(i.e., hydrology, hydrophytic vegetation,

[[Page 4205]]

hydric soils) identified in paragraph (c)(15) of this section, and does 
not lie below the ordinary high water mark or the high tide line of a 
water identified in paragraph (a)(1) through (6) of this section. 
Waters identified in paragraphs (a)(1) through (6) of this section are 
not upland.
    (14) Waste treatment system. The term waste treatment system 
includes all components, including lagoons and treatment ponds (such as 
settling or cooling ponds), designed to convey or retain, concentrate, 
settle, reduce, or remove pollutants, either actively or passively, 
from wastewater prior to discharge (or eliminating any such discharge).
    (15) Wetlands. The term wetlands means areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, 
a prevalence of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include swamps, marshes, bogs, and 
similar areas.

Title 40--Protection of Environment

    For reasons set out in the preamble, the EPA proposes to amend 40 
CFR part 110 as follows:

PART 110--DISCHARGE OF OIL

0
3. The authority citation for part 110 continues to read as follows: 33 
U.S.C.

    Authority: 1251 et seq., 33 U.S.C. 1321(b)(3) and (b)(4) and 
1361(a); E.O. 11735, 38 FR 21243, 3 CFR parts 1971-1975 Comp., p. 
793.

0
4. Section 110.1 is amended by revising the definition of ``navigable 
waters'' to read as follows:


Sec.  110.1  Definitions.

* * * * *
    Navigable waters means waters of the United States, including the 
territorial seas.
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and 
its implementing regulations, subject to the exclusions in paragraph 
(2) of this section, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
the territorial seas and waters which are subject to the ebb and flow 
of the tide;
    (ii) Tributaries of waters identified in paragraph (1)(i) of this 
definition;
    (iii) Ditches that satisfy any of the conditions identified in 
paragraph (1)(i) of this definition, ditches constructed in a tributary 
or that relocate or alter a tributary as long as those ditches also 
satisfy the conditions of the tributary definition, and ditches 
constructed in an adjacent wetland as long as those ditches also 
satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified 
in paragraph (1)(i) of this definition, lakes and ponds that contribute 
perennial or intermittent flow to a water identified in paragraph 
(1)(i) of this definition in a typical year either directly or 
indirectly through a water(s) identified in paragraphs (1)(ii) through 
(vi) of this definition or through water features identified in 
paragraph (2) of this definition so long as those water features convey 
perennial or intermittent flow downstream, and lakes and ponds that are 
flooded by a water identified in paragraphs (1)(i) through (v) of this 
definition in a typical year;
    (v) Impoundments of waters identified in paragraphs (1)(i) through 
(iv) and (vi) of this definition; and
    (vi) Adjacent wetlands to waters identified in paragraphs (1)(i) 
through (v) of this definition.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs 
(1)(i) through (vi) of this definition;
    (ii) Groundwater, including groundwater drained through subsurface 
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including 
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (1)(iii) of this 
definition;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for 
rice or cranberry growing, that would revert to upland should 
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including 
water storage reservoirs, farm and stock watering ponds, and log 
cleaning ponds) which are not identified in paragraph (1)(iv) or (v) of 
this definition;
    (viii) Water-filled depressions created in upland incidental to 
mining or construction activity, and pits excavated in upland for the 
purpose of obtaining fill, sand, or gravel;
    (ix) Stormwater control features excavated or constructed in upland 
to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as 
detention, retention and infiltration basins and ponds, and groundwater 
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this definition, the following terms apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands 
that abut or have a direct hydrologic surface connection to a water 
identified in paragraphs (1)(i) through (v) of this definition in a 
typical year. Abut means to touch at least at one point or side of a 
water identified in paragraphs (1)(i) through (v) of this definition. A 
direct hydrologic surface connection occurs as a result of inundation 
from a paragraph (1)(i) through (v) water to a wetland or via perennial 
or intermittent flow between a wetland and a paragraph (1)(i) through 
(v) water. Wetlands physically separated from a paragraph (1)(i) 
through (v) water by upland or by dikes, barriers, or similar 
structures and also lacking a direct hydrologic surface connection to 
such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to 
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or 
pooling only in direct response to precipitation (e.g., rain or snow 
fall).
    (iv) High tide line. The term high tide line means the line of 
intersection of the land with the water's surface at the maximum height 
reached by a rising tide. The high tide line may be determined, in the 
absence of actual data, by a line of oil or scum along shore objects, a 
more or less continuous deposit of fine shell or debris on the 
foreshore or berm, other physical markings or characteristics, 
vegetation lines, tidal gages, or other suitable means that delineate 
the general height reached by a rising tide. The line encompasses 
spring high tides and other high tides that occur with periodic 
frequency but does not include storm surges in which there is a 
departure from the normal or predicted reach of the tide due to the 
piling up of water against a coast by strong winds, such as those 
accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water flowing 
continuously during certain times of a typical year and more than in 
direct response to precipitation (e.g., seasonally when the groundwater 
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark 
means that line on the shore established by the fluctuations of water 
and indicated by physical characteristics such as clear, natural line 
impressed on the bank, shelving, changes in the character of soil, 
destruction of terrestrial vegetation, the presence of litter and 
debris, or other appropriate means that consider the characteristics of 
the surrounding areas.

[[Page 4206]]

    (vii) Perennial. The term perennial means surface water flowing 
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland 
means any area that, prior to December 23, 1985, was drained or 
otherwise manipulated for the purpose, or having the effect, of making 
production of an agricultural product possible. EPA and the Corps will 
recognize designations of prior converted cropland made by the 
Secretary of Agriculture. An area is no longer considered prior 
converted cropland for purposes of the Clean Water Act when the area is 
abandoned and has reverted to wetland, as defined in paragraph (3)(xv) 
of this definition. Abandonment occurs when prior converted cropland is 
not used for, or in support of, agricultural purposes at least once in 
the immediately preceding five years. For the purposes of the Clean 
Water Act, the EPA Administrator shall have the final authority to 
determine whether prior converted cropland has been abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that 
accumulate over extended periods of time in certain geographic regions 
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the 
tide. The terms tidal waters and waters subject to the ebb and flow of 
the tide mean those waters that rise and fall in a predictable and 
measurable rhythm or cycle due to the gravitational pulls of the moon 
and sun. Tidal waters and waters subject to the ebb and flow of the 
tide end where the rise and fall of the water surface can no longer be 
practically measured in a predictable rhythm due to masking by 
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or 
similar naturally occurring surface water channel that contributes 
perennial or intermittent flow to a water identified in paragraph 
(1)(i) of this definition in a typical year either directly or 
indirectly through a water(s) identified in paragraphs (1)(ii) through 
(vi) of this definition or through water features identified in 
paragraph (2) of this definition so long as those water features convey 
perennial or intermittent flow downstream. A tributary does not lose 
its status as a tributary if it flows through a culvert, dam, or other 
similar artificial break or through a debris pile, boulder field, or 
similar natural break so long as the artificial or natural break 
conveys perennial or intermittent flow to a tributary or other 
jurisdictional water at the downstream end of the break. The alteration 
or relocation of a tributary does not modify its status as a tributary 
as long as it continues to satisfy the elements of this definition.
    (xii) Typical year. The term typical year means within the normal 
range of precipitation over a rolling thirty-year period for a 
particular geographic area.
    (xiii) Upland. The term upland means any land area that under 
normal circumstances does not satisfy all three wetland delineation 
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils) 
identified in paragraph (3)(xv) of this definition, and does not lie 
below the ordinary high water mark or the high tide line of a water 
identified in paragraph (1)(i) through (vi) of this definition. Waters 
identified in paragraphs (1)(i) through (vi) of this definition are not 
upland.
    (xiv) Waste treatment system. The term waste treatment system 
includes all components, including lagoons and treatment ponds (such as 
settling or cooling ponds), designed to convey or retain, concentrate, 
settle, reduce, or remove pollutants, either actively or passively, 
from wastewater prior to discharge (or eliminating any such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, 
a prevalence of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include swamps, marshes, bogs, and 
similar areas.
* * * * *

PART 112--OIL POLLUTION PREVENTION

0
5. The authority citation for part 112 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.

0
6. Section 112.2 is amended by revising the definition of ``navigable 
waters'' to read as follows:


Sec.  112.2  Definitions.

* * * * *
    Navigable waters means waters of the United States, including the 
territorial seas.
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and 
its implementing regulations, subject to the exclusions in paragraph 
(2) of this section, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
the territorial seas and waters which are subject to the ebb and flow 
of the tide;
    (ii) Tributaries of waters identified in paragraph (1)(i) of this 
definition;
    (iii) Ditches that satisfy any of the conditions identified in 
paragraph (1)(i) of this definition, ditches constructed in a tributary 
or that relocate or alter a tributary as long as those ditches also 
satisfy the conditions of the tributary definition, and ditches 
constructed in an adjacent wetland as long as those ditches also 
satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified 
in paragraph (a)(1) of this definition, lakes and ponds that contribute 
perennial or intermittent flow to a water identified in paragraph 
(1)(i) of this section in a typical year either directly or indirectly 
through a water(s) identified in paragraphs (1)(ii) through (iv) of 
this definition or through water features identified in paragraph (2) 
of this definition so long as those water features convey perennial or 
intermittent flow downstream, and lakes and ponds that are flooded by a 
water identified in paragraphs (1)(i) through (v) of this definition in 
a typical year;
    (v) Impoundments of waters identified in paragraphs (1)(i) through 
(iv) and (vi) of this definition; and
    (vi) Adjacent wetlands to waters identified in paragraphs (1)(i) 
through (v) of this definition.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs 
(1)(i) through (vi) of this definition;
    (ii) Groundwater, including groundwater drained through subsurface 
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including 
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (1)(iii) of this 
definition;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for 
rice or cranberry growing, that would revert to upland should 
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including 
water storage reservoirs, farm and stock watering ponds, and log 
cleaning ponds) which are not identified in paragraph (1)(iv) or (1)(v) 
of this definition;
    (viii) Water-filled depressions created in upland incidental to 
mining or construction activity, and pits excavated in upland for the 
purpose of obtaining fill, sand, or gravel;
    (ix) Stormwater control features excavated or constructed in upland 
to

[[Page 4207]]

convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as 
detention, retention and infiltration basins and ponds, and groundwater 
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this definition, the following terms apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands 
that abut or have a direct hydrologic surface connection to a water 
identified in paragraphs (1)(i) through (v) of this definition in a 
typical year. Abut means to touch at least at one point or side of a 
water identified in paragraphs (1)(i) through (v) of this definition. A 
direct hydrologic surface connection occurs as a result of inundation 
from a paragraph (1)(i) through (v) water to a wetland or via perennial 
or intermittent flow between a wetland and a paragraph (1)(i) through 
(v) water. Wetlands physically separated from a paragraph (1)(i) 
through (v) water by upland or by dikes, barriers, or similar 
structures and also lacking a direct hydrologic surface connection to 
such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to 
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or 
pooling only in direct response to precipitation (e.g., rain or snow 
fall).
    (iv) High tide line. The term high tide line means the line of 
intersection of the land with the water's surface at the maximum height 
reached by a rising tide. The high tide line may be determined, in the 
absence of actual data, by a line of oil or scum along shore objects, a 
more or less continuous deposit of fine shell or debris on the 
foreshore or berm, other physical markings or characteristics, 
vegetation lines, tidal gages, or other suitable means that delineate 
the general height reached by a rising tide. The line encompasses 
spring high tides and other high tides that occur with periodic 
frequency but does not include storm surges in which there is a 
departure from the normal or predicted reach of the tide due to the 
piling up of water against a coast by strong winds, such as those 
accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water flowing 
continuously during certain times of a typical year and more than in 
direct response to precipitation (e.g., seasonally when the groundwater 
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark 
means that line on the shore established by the fluctuations of water 
and indicated by physical characteristics such as clear, natural line 
impressed on the bank, shelving, changes in the character of soil, 
destruction of terrestrial vegetation, the presence of litter and 
debris, or other appropriate means that consider the characteristics of 
the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing 
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland 
means any area that, prior to December 23, 1985, was drained or 
otherwise manipulated for the purpose, or having the effect, of making 
production of an agricultural product possible. EPA and the Corps will 
recognize designations of prior converted cropland made by the 
Secretary of Agriculture. An area is no longer considered prior 
converted cropland for purposes of the Clean Water Act when the area is 
abandoned and has reverted to wetland, as defined in paragraph (3)(xv) 
of this definition. Abandonment occurs when prior converted cropland is 
not used for, or in support of, agricultural purposes at least once in 
the immediately preceding five years. For the purposes of the Clean 
Water Act, the EPA Administrator shall have the final authority to 
determine whether prior converted cropland has been abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that 
accumulate over extended periods of time in certain geographic regions 
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the 
tide. The terms tidal waters and waters subject to the ebb and flow of 
the tide mean those waters that rise and fall in a predictable and 
measurable rhythm or cycle due to the gravitational pulls of the moon 
and sun. Tidal waters and waters subject to the ebb and flow of the 
tide end where the rise and fall of the water surface can no longer be 
practically measured in a predictable rhythm due to masking by 
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or 
similar naturally occurring surface water channel that contributes 
perennial or intermittent flow to a water identified in paragraph 
(1)(i) of this definition in a typical year either directly or 
indirectly through a water(s) identified in paragraphs (1)(ii) through 
(vi) of this definition or through water features identified in 
paragraph (2) of this section so long as those water features convey 
perennial or intermittent flow downstream. A tributary does not lose 
its status as a tributary if it flows through a culvert, dam, or other 
similar artificial break or through a debris pile, boulder field, or 
similar natural break so long as the artificial or natural break 
conveys perennial or intermittent flow to a tributary or other 
jurisdictional water at the downstream end of the break. The alteration 
or relocation of a tributary does not modify its status as a tributary 
as long as it continues to satisfy the elements of this definition.
    (xii) Typical year. The term typical year means within the normal 
range of precipitation over a rolling thirty-year period for a 
particular geographic area.
    (xiii) Upland. The term upland means any land area that under 
normal circumstances does not satisfy all three wetland delineation 
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils) 
identified in paragraph (3)(xv) of this definition, and does not lie 
below the ordinary high water mark or the high tide line of a water 
identified in paragraph (1)(i) through (vi) of this definition. Waters 
identified in paragraphs (1)(i) through (vi) of this definition are not 
upland.
    (xiv) Waste treatment system. The term waste treatment system 
includes all components, including lagoons and treatment ponds (such as 
settling or cooling ponds), designed to convey or retain, concentrate, 
settle, reduce, or remove pollutants, either actively or passively, 
from wastewater prior to discharge (or eliminating any such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, 
a prevalence of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include swamps, marshes, bogs, and 
similar areas.
* * * * *

PART 116--DESIGNATION OF HAZARDOUS SUBSTANCES

0
7. The authority citation for part 116 is continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq.

0
8. Section 116.3 is amended by revising the definition of ``Navigable 
waters'' to read as follows:


Sec.  116.3  Definitions.

* * * * *
    Navigable waters means waters of the United States, including the 
territorial seas.

[[Page 4208]]

    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and 
its implementing regulations, subject to the exclusions in paragraph 
(2) of this definition, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
the territorial seas and waters which are subject to the ebb and flow 
of the tide;
    (ii) Tributaries of waters identified in paragraph (1)(i) of this 
definition;
    (iii) Ditches that satisfy any of the conditions identified in 
paragraph (1)(i) of this definition, ditches constructed in a tributary 
or that relocate or alter a tributary as long as those ditches also 
satisfy the conditions of the tributary definition, and ditches 
constructed in an adjacent wetland as long as those ditches also 
satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified 
in paragraph (a)(1) of this definition, lakes and ponds that contribute 
perennial or intermittent flow to a water identified in paragraph 
(1)(i) of this definition in a typical year either directly or 
indirectly through a water(s) identified in paragraphs (1)(ii) through 
(iv) of this definition or through water features identified in 
paragraph (2) of this definition so long as those water features convey 
perennial or intermittent flow downstream, and lakes and ponds that are 
flooded by a water identified in paragraphs (1)(i) through (v) of this 
definition in a typical year;
    (v) Impoundments of waters identified in paragraphs (1)(i) through 
(iv) and (vi) of this definition; and
    (vi) Adjacent wetlands to waters identified in paragraphs (1)(i) 
through (v) of this definition.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs 
(1)(i) through (vi) of this definition;
    (ii) Groundwater, including groundwater drained through subsurface 
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including 
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (1)(iii) of this 
definition;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for 
rice or cranberry growing, that would revert to upland should 
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including 
water storage reservoirs, farm and stock watering ponds, and log 
cleaning ponds) which are not identified in paragraph (1)(iv) or (v) of 
this definition;
    (viii) Water-filled depressions created in upland incidental to 
mining or construction activity, and pits excavated in upland for the 
purpose of obtaining fill, sand, or gravel;
    (ix) Stormwater control features excavated or constructed in upland 
to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as 
detention, retention and infiltration basins and ponds, and groundwater 
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this definition, the following terms apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands 
that abut or have a direct hydrologic surface connection to a water 
identified in paragraphs (1)(i) through (v) of this definition in a 
typical year. Abut means to touch at least at one point or side of a 
water identified in paragraphs (1)(i) through (v) of this definition. A 
direct hydrologic surface connection occurs as a result of inundation 
from a paragraph (1)(i) through (v) water to a wetland or via perennial 
or intermittent flow between a wetland and a paragraph (1)(i) through 
(v) water. Wetlands physically separated from a paragraph (1)(i) 
through (v) water by upland or by dikes, barriers, or similar 
structures and also lacking a direct hydrologic surface connection to 
such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to 
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or 
pooling only in direct response to precipitation (e.g., rain or snow 
fall).
    (iv) High tide line. The term high tide line means the line of 
intersection of the land with the water's surface at the maximum height 
reached by a rising tide. The high tide line may be determined, in the 
absence of actual data, by a line of oil or scum along shore objects, a 
more or less continuous deposit of fine shell or debris on the 
foreshore or berm, other physical markings or characteristics, 
vegetation lines, tidal gages, or other suitable means that delineate 
the general height reached by a rising tide. The line encompasses 
spring high tides and other high tides that occur with periodic 
frequency but does not include storm surges in which there is a 
departure from the normal or predicted reach of the tide due to the 
piling up of water against a coast by strong winds, such as those 
accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water flowing 
continuously during certain times of a typical year and more than in 
direct response to precipitation (e.g., seasonally when the groundwater 
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark 
means that line on the shore established by the fluctuations of water 
and indicated by physical characteristics such as clear, natural line 
impressed on the bank, shelving, changes in the character of soil, 
destruction of terrestrial vegetation, the presence of litter and 
debris, or other appropriate means that consider the characteristics of 
the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing 
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland 
means any area that, prior to December 23, 1985, was drained or 
otherwise manipulated for the purpose, or having the effect, of making 
production of an agricultural product possible. EPA and the Corps will 
recognize designations of prior converted cropland made by the 
Secretary of Agriculture. An area is no longer considered prior 
converted cropland for purposes of the Clean Water Act when the area is 
abandoned and has reverted to wetland, as defined in paragraph (3)(xv) 
of this definition. Abandonment occurs when prior converted cropland is 
not used for, or in support of, agricultural purposes at least once in 
the immediately preceding five years. For the purposes of the Clean 
Water Act, the EPA Administrator shall have the final authority to 
determine whether prior converted cropland has been abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that 
accumulate over extended periods of time in certain geographic regions 
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the 
tide. The terms tidal waters and waters subject to the ebb and flow of 
the tide mean those waters that rise and fall in a predictable and 
measurable rhythm or cycle due to the gravitational pulls of the moon 
and sun. Tidal waters and waters subject to the ebb and flow of the 
tide end where the rise and fall of the water surface can no longer be 
practically measured in a predictable rhythm due to masking by 
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or 
similar naturally occurring surface water

[[Page 4209]]

channel that contributes perennial or intermittent flow to a water 
identified in paragraph (1)(i) of this definition in a typical year 
either directly or indirectly through a water(s) identified in 
paragraphs (1)(ii) through (vi) of this definition or through water 
features identified in paragraph (2) of this section so long as those 
water features convey perennial or intermittent flow downstream. A 
tributary does not lose its status as a tributary if it flows through a 
culvert, dam, or other similar artificial break or through a debris 
pile, boulder field, or similar natural break so long as the artificial 
or natural break conveys perennial or intermittent flow to a tributary 
or other jurisdictional water at the downstream end of the break. The 
alteration or relocation of a tributary does not modify its status as a 
tributary as long as it continues to satisfy the elements of this 
definition.
    (xii) Typical year. The term typical year means within the normal 
range of precipitation over a rolling thirty-year period for a 
particular geographic area.
    (xiii) Upland. The term upland means any land area that under 
normal circumstances does not satisfy all three wetland delineation 
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils) 
identified in paragraph (3)(xv) of this definition, and does not lie 
below the ordinary high water mark or the high tide line of a water 
identified in paragraph (1)(i) through (vi) of this definition. Waters 
identified in paragraphs (1)(i) through (vi) of this definition are not 
upland.
    (xiv) Waste treatment system. The term waste treatment system 
includes all components, including lagoons and treatment ponds (such as 
settling or cooling ponds), designed to convey or retain, concentrate, 
settle, reduce, or remove pollutants, either actively or passively, 
from wastewater prior to discharge (or eliminating any such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, 
a prevalence of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include swamps, marshes, bogs, and 
similar areas.
* * * * *

PART 117--DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS 
SUBSTANCES

0
9. The authority citation for part 117 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq., and Executive Order 11735, 
superseded by Executive Order 12777, 56 FR 54757.

0
10. Section 117.1 is amended by revising paragraph (i) to read as 
follows:


Sec.  117.1   Definitions.

* * * * *
    (i) Navigable waters is defined in section 502(7) of the Act to 
mean ``waters of the United States, including the territorial seas.''
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and 
its implementing regulations, subject to the exclusions in paragraph 
(i)(2) of this section, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
the territorial seas and waters which are subject to the ebb and flow 
of the tide;
    (ii) Tributaries of waters identified in paragraph (i)(1)(i) of 
this section;
    (iii) Ditches that satisfy any of the conditions identified in 
paragraph (i)(1)(i) of this section, ditches constructed in a tributary 
or that relocate or alter a tributary as long as those ditches also 
satisfy the conditions of the tributary definition, and ditches 
constructed in an adjacent wetland as long as those ditches also 
satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified 
in paragraph (i)(1)(i) of this section, lakes and ponds that contribute 
perennial or intermittent flow to a water identified in paragraph 
(i)(1)(i) of this section in a typical year either directly or 
indirectly through a water(s) identified in paragraphs (i)(1)(ii) 
through (vi) of this section or through water features identified in 
paragraph (i)(2) of this section so long as those water features convey 
perennial or intermittent flow downstream, and lakes and ponds that are 
flooded by a water identified in paragraphs (i)(1)(i) through (v) of 
this section in a typical year;
    (vi) Impoundments of waters identified in paragraphs (i)(1)(i) 
through (iv) and (vi) of this section; and
    (vii) Adjacent wetlands to waters identified in paragraphs 
(i)(1)(i) through (v) of this section.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs 
(i)(1)(i) through (vi) of this section;
    (ii) Groundwater, including groundwater drained through subsurface 
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including 
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (i)(1)(iii) of 
this section;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for 
rice or cranberry growing, that would revert to upland should 
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including 
water storage reservoirs, farm and stock watering ponds, and log 
cleaning ponds) which are not identified in paragraph (i)(1)(iv) or (v) 
of this section;
    (viii) Water-filled depressions created in upland incidental to 
mining or construction activity, and pits excavated in upland for the 
purpose of obtaining fill, sand, or gravel;
    (ix) Stormwater control features excavated or constructed in upland 
to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as 
detention, retention and infiltration basins and ponds, and groundwater 
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this paragraph (i), the following definitions apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands 
that abut or have a direct hydrologic surface connection to a water 
identified in paragraphs (i)(1)(i) through (v) of this section in a 
typical year. Abut means to touch at least at one point or side of a 
water identified in paragraphs (i)(1)(i) through (v) of this section. A 
direct hydrologic surface connection occurs as a result of inundation 
from a paragraph (i)(1)(i) through (v) water to a wetland or via 
perennial or intermittent flow between a wetland and a paragraph 
(i)(1)(i) through (v) water. Wetlands physically separated from a 
paragraph (i)(1)(i) through (v) water by upland or by dikes, barriers, 
or similar structures and also lacking a direct hydrologic surface 
connection to such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to 
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or 
pooling only in direct response to precipitation (e.g., rain or snow 
fall).
    (iv) High tide line. The term high tide line means the line of 
intersection of the land with the water's surface at the maximum height 
reached by a rising tide. The high tide line may be determined, in the 
absence of actual data, by a line of oil or scum along shore objects, a 
more or less continuous deposit of fine shell or debris on the 
foreshore or berm, other physical markings or characteristics, 
vegetation

[[Page 4210]]

lines, tidal gages, or other suitable means that delineate the general 
height reached by a rising tide. The line encompasses spring high tides 
and other high tides that occur with periodic frequency but does not 
include storm surges in which there is a departure from the normal or 
predicted reach of the tide due to the piling up of water against a 
coast by strong winds, such as those accompanying a hurricane or other 
intense storm.
    (v) Intermittent. The term intermittent means surface water flowing 
continuously during certain times of a typical year and more than in 
direct response to precipitation (e.g., seasonally when the groundwater 
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark 
means that line on the shore established by the fluctuations of water 
and indicated by physical characteristics such as clear, natural line 
impressed on the bank, shelving, changes in the character of soil, 
destruction of terrestrial vegetation, the presence of litter and 
debris, or other appropriate means that consider the characteristics of 
the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing 
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland 
means any area that, prior to December 23, 1985, was drained or 
otherwise manipulated for the purpose, or having the effect, of making 
production of an agricultural product possible. EPA and the Corps will 
recognize designations of prior converted cropland made by the 
Secretary of Agriculture. An area is no longer considered prior 
converted cropland for purposes of the Clean Water Act when the area is 
abandoned and has reverted to wetland, as defined in paragraph 
(i)(3)(xv) of this section. Abandonment occurs when prior converted 
cropland is not used for, or in support of, agricultural purposes at 
least once in the immediately preceding five years. For the purposes of 
the Clean Water Act, the EPA Administrator shall have the final 
authority to determine whether prior converted cropland has been 
abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that 
accumulate over extended periods of time in certain geographic regions 
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the 
tide. The terms tidal waters and waters subject to the ebb and flow of 
the tide mean those waters that rise and fall in a predictable and 
measurable rhythm or cycle due to the gravitational pulls of the moon 
and sun. Tidal waters and waters subject to the ebb and flow of the 
tide end where the rise and fall of the water surface can no longer be 
practically measured in a predictable rhythm due to masking by 
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or 
similar naturally occurring surface water channel that contributes 
perennial or intermittent flow to a water identified in paragraph 
(i)(1)(i) of this section in a typical year either directly or 
indirectly through a water(s) identified in paragraphs (i)(1)(ii) 
through (vi) of this section or through water features identified in 
paragraph (i)(2) of this section so long as those water features convey 
perennial or intermittent flow downstream. A tributary does not lose 
its status as a tributary if it flows through a culvert, dam, or other 
similar artificial break or through a debris pile, boulder field, or 
similar natural break so long as the artificial or natural break 
conveys perennial or intermittent flow to a tributary or other 
jurisdictional water at the downstream end of the break. The alteration 
or relocation of a tributary does not modify its status as a tributary 
as long as it continues to satisfy the elements of this definition.
    (xii) Typical year. The term typical year means within the normal 
range of precipitation over a rolling thirty-year period for a 
particular geographic area.
    (xiii) Upland. The term upland means any land area that under 
normal circumstances does not satisfy all three wetland delineation 
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils) 
identified in paragraph (i)(3)(xv) of this section, and does not lie 
below the ordinary high water mark or the high tide line of a water 
identified in paragraph (i)(1)(i) through (vi) of this section. Waters 
identified in paragraphs (i)(1)(i) through (vi) of this section are not 
upland.
    (xiv) Waste treatment system. The term waste treatment system 
includes all components, including lagoons and treatment ponds (such as 
settling or cooling ponds), designed to convey or retain, concentrate, 
settle, reduce, or remove pollutants, either actively or passively, 
from wastewater prior to discharge (or eliminating any such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, 
a prevalence of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include swamps, marshes, bogs, and 
similar areas.
* * * * *

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

0
11. The authority citation for part 122 continues to read as follows:

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

0
12. Section 122.2 is amended by revising the definition of ``Waters of 
the United States'' to read as follows:


Sec.  122.2  Definitions.

* * * * *
    Waters of the United States or waters of the U.S. means:
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and 
its implementing regulations, subject to the exclusions in paragraph 
(2) of this definition, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
the territorial seas and waters which are subject to the ebb and flow 
of the tide;
    (ii) Tributaries of waters identified in paragraph (1)(i) of this 
definition;
    (iii) Ditches that satisfy any of the conditions identified in 
paragraph (1)(i) of this definition, ditches constructed in a tributary 
or that relocate or alter a tributary as long as those ditches also 
satisfy the conditions of the tributary definition, and ditches 
constructed in an adjacent wetland as long as those ditches also 
satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified 
in paragraph (1)(i) of this definition, lakes and ponds that contribute 
perennial or intermittent flow to a water identified in paragraph 
(1)(i) of this definition in a typical year either directly or 
indirectly through a water(s) identified in paragraphs (1)(ii) through 
(vi) of this definition or through water features identified in 
paragraph (2) of this definition so long as those water features convey 
perennial or intermittent flow downstream, and lakes and ponds that are 
flooded by a water identified in paragraphs (1)(i) through (v) of this 
definition in a typical year;
    (v) Impoundments of waters identified in paragraphs (1)(i) through 
(iv) and (vi) of this definition; and
    (vi) Adjacent wetlands to waters identified in paragraphs (1)(i) 
through (v) of this definition.

[[Page 4211]]

    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs 
(1)(i) through (vi) of this definition;
    (ii) Groundwater, including groundwater drained through subsurface 
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including 
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (1)(iii) of this 
definition;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for 
rice or cranberry growing, that would revert to upland should 
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including 
water storage reservoirs, farm and stock watering ponds, and log 
cleaning ponds) which are not identified in paragraph (1)(iv) or (v) of 
this section;
    (viii) Water-filled depressions created in upland incidental to 
mining or construction activity, and pits excavated in upland for the 
purpose of obtaining fill, sand, or gravel;
    (ix) Stormwater control features excavated or constructed in upland 
to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as 
detention, retention and infiltration basins and ponds, and groundwater 
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this definition, the following terms apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands 
that abut or have a direct hydrologic surface connection to a water 
identified in paragraphs (1)(i) through (v) of this definition in a 
typical year. Abut means to touch at least at one point or side of a 
water identified in paragraphs (1)(i) through (v) of this definition. A 
direct hydrologic surface connection occurs as a result of inundation 
from a paragraph (1)(i) through (v) water to a wetland or via perennial 
or intermittent flow between a wetland and a paragraph (1)(i) through 
(v) water. Wetlands physically separated from a paragraph (1)(i) 
through (v) water by upland or by dikes, barriers, or similar 
structures and also lacking a direct hydrologic surface connection to 
such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to 
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or 
pooling only in direct response to precipitation (e.g., rain or snow 
fall).
    (iv) High tide line. The term high tide line means the line of 
intersection of the land with the water's surface at the maximum height 
reached by a rising tide. The high tide line may be determined, in the 
absence of actual data, by a line of oil or scum along shore objects, a 
more or less continuous deposit of fine shell or debris on the 
foreshore or berm, other physical markings or characteristics, 
vegetation lines, tidal gages, or other suitable means that delineate 
the general height reached by a rising tide. The line encompasses 
spring high tides and other high tides that occur with periodic 
frequency but does not include storm surges in which there is a 
departure from the normal or predicted reach of the tide due to the 
piling up of water against a coast by strong winds, such as those 
accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water flowing 
continuously during certain times of a typical year and more than in 
direct response to precipitation (e.g., seasonally when the groundwater 
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark 
means that line on the shore established by the fluctuations of water 
and indicated by physical characteristics such as clear, natural line 
impressed on the bank, shelving, changes in the character of soil, 
destruction of terrestrial vegetation, the presence of litter and 
debris, or other appropriate means that consider the characteristics of 
the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing 
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland 
means any area that, prior to December 23, 1985, was drained or 
otherwise manipulated for the purpose, or having the effect, of making 
production of an agricultural product possible. EPA and the Corps will 
recognize designations of prior converted cropland made by the 
Secretary of Agriculture. An area is no longer considered prior 
converted cropland for purposes of the Clean Water Act when the area is 
abandoned and has reverted to wetland, as defined in paragraph (3)(xv) 
of this definition. Abandonment occurs when prior converted cropland is 
not used for, or in support of, agricultural purposes at least once in 
the immediately preceding five years. For the purposes of the Clean 
Water Act, the EPA Administrator shall have the final authority to 
determine whether prior converted cropland has been abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that 
accumulate over extended periods of time in certain geographic regions 
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the 
tide. The terms tidal waters and waters subject to the ebb and flow of 
the tide mean those waters that rise and fall in a predictable and 
measurable rhythm or cycle due to the gravitational pulls of the moon 
and sun. Tidal waters and waters subject to the ebb and flow of the 
tide end where the rise and fall of the water surface can no longer be 
practically measured in a predictable rhythm due to masking by 
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or 
similar naturally occurring surface water channel that contributes 
perennial or intermittent flow to a water identified in paragraph 
(1)(i) of this definition in a typical year either directly or 
indirectly through a water(s) identified in paragraphs (1)(ii) through 
(vi) of this definition or through water features identified in 
paragraph (2) of this section so long as those water features convey 
perennial or intermittent flow downstream. A tributary does not lose 
its status as a tributary if it flows through a culvert, dam, or other 
similar artificial break or through a debris pile, boulder field, or 
similar natural break so long as the artificial or natural break 
conveys perennial or intermittent flow to a tributary or other 
jurisdictional water at the downstream end of the break. The alteration 
or relocation of a tributary does not modify its status as a tributary 
as long as it continues to satisfy the elements of this definition.
    (xii) Typical year. The term typical year means within the normal 
range of precipitation over a rolling thirty-year period for a 
particular geographic area.
    (xiii) Upland. The term upland means any land area that under 
normal circumstances does not satisfy all three wetland delineation 
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils) 
identified in paragraph (3)(xv) of this definition, and does not lie 
below the ordinary high water mark or the high tide line of a water 
identified in paragraph (1)(i) through (vi) of this definition. Waters 
identified in paragraphs (1)(i) through (vi) of this definition are not 
upland.
    (xiv) Waste treatment system. The term waste treatment system 
includes all components, including lagoons and treatment ponds (such as 
settling or cooling ponds), designed to convey or

[[Page 4212]]

retain, concentrate, settle, reduce, or remove pollutants, either 
actively or passively, from wastewater prior to discharge (or 
eliminating any such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, 
a prevalence of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include swamps, marshes, bogs, and 
similar areas.
* * * * *

PART 230--SECTION 404(b)(1) GUIDELINES FOR SPECIFICATION OF 
DISPOSAL SITES FOR DREDGED OR FILL MATERIAL

0
13. The authority citation for part 230 continues to read as follows:

    Authority: The Clean Water Act, Secs. 404(b) and 501(a) of the 
Clean Water Act of 1977 (33 U.S.C. 1344(b) and 1361(a)).

0
14. Section 230.3 is amended by revising paragraph (o) to read as 
follows:


Sec.  230.3  Definitions.

* * * * *
    (o) The term waters of the United States means:
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and 
its implementing regulations, subject to the exclusions in paragraph 
(o)(3) of this section, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
the territorial seas and waters which are subject to the ebb and flow 
of the tide;
    (ii) Tributaries of waters identified in paragraph (o)(1)(i) of 
this section;
    (iii) Ditches that satisfy any of the conditions identified in 
paragraph (o)(1)(i) of this section, ditches constructed in a tributary 
or that relocate or alter a tributary as long as those ditches also 
satisfy the conditions of the tributary definition, and ditches 
constructed in an adjacent wetland as long as those ditches also 
satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified 
in paragraph (o)(1)(i) of this section, lakes and ponds that contribute 
perennial or intermittent flow to a water identified in paragraph 
(o)(1)(i) of this section in a typical year either directly or 
indirectly through a water(s) identified in paragraphs (o)(1)(i) of 
this section or through water features identified in paragraph (o)(2) 
of this section so long as those water features convey perennial or 
intermittent flow downstream, and lakes and ponds that are flooded by a 
water identified in paragraphs (o)(1)(i) through (v) of this section in 
a typical year;
    (v) Impoundments of waters identified in paragraphs (o)(1)(i) 
through (iv) and (vi) of this section; and
    (vi) Adjacent wetlands to waters identified in paragraphs (o)(1)(i) 
through (v) of this section.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs 
(o)(1)(i) through (vi) of this section;
    (ii) Groundwater, including groundwater drained through subsurface 
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including 
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (o)(1)(iii) of 
this section;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for 
rice or cranberry growing, that would revert to upland should 
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including 
water storage reservoirs, farm and stock watering ponds, and log 
cleaning ponds) which are not identified in paragraph (o)(1)(iv) or (v) 
of this section;
    (viii) Water-filled depressions created in upland incidental to 
mining or construction activity, and pits excavated in upland for the 
purpose of obtaining fill, sand, or gravel;
    (ix) Stormwater control features excavated or constructed in upland 
to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as 
detention, retention and infiltration basins and ponds, and groundwater 
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this paragraph (o), the following definitions apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands 
that abut or have a direct hydrologic surface connection to a water 
identified in paragraphs (o)(1)(i) through (v) of this section in a 
typical year. Abut means to touch at least at one point or side of a 
water identified in paragraphs (o)(1)(i) through (v) of this section. A 
direct hydrologic surface connection occurs as a result of inundation 
from a paragraph (o)(1)(i) through (v) water to a wetland or via 
perennial or intermittent flow between a wetland and a paragraph 
(o)(1)(i) through (v) water. Wetlands physically separated from a 
paragraph (o)(1)(i) through (v) water by upland or by dikes, barriers, 
or similar structures and also lacking a direct hydrologic surface 
connection to such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to 
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or 
pooling only in direct response to precipitation (e.g., rain or snow 
fall).
    (iv) High tide line. The term high tide line means the line of 
intersection of the land with the water's surface at the maximum height 
reached by a rising tide. The high tide line may be determined, in the 
absence of actual data, by a line of oil or scum along shore objects, a 
more or less continuous deposit of fine shell or debris on the 
foreshore or berm, other physical markings or characteristics, 
vegetation lines, tidal gages, or other suitable means that delineate 
the general height reached by a rising tide. The line encompasses 
spring high tides and other high tides that occur with periodic 
frequency but does not include storm surges in which there is a 
departure from the normal or predicted reach of the tide due to the 
piling up of water against a coast by strong winds, such as those 
accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water flowing 
continuously during certain times of a typical year and more than in 
direct response to precipitation (e.g., seasonally when the groundwater 
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark 
means that line on the shore established by the fluctuations of water 
and indicated by physical characteristics such as clear, natural line 
impressed on the bank, shelving, changes in the character of soil, 
destruction of terrestrial vegetation, the presence of litter and 
debris, or other appropriate means that consider the characteristics of 
the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing 
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland 
means any area that, prior to December 23, 1985, was drained or 
otherwise manipulated for the purpose, or having the effect, of making 
production of an agricultural product possible. EPA and the Corps will 
recognize designations of prior converted cropland made by the 
Secretary of Agriculture. An area is no longer considered prior 
converted cropland for purposes of the Clean

[[Page 4213]]

Water Act when the area is abandoned and has reverted to wetland, as 
defined in paragraph (o)(3)(xv) of this section. Abandonment occurs 
when prior converted cropland is not used for, or in support of, 
agricultural purposes at least once in the immediately preceding five 
years. For the purposes of the Clean Water Act, the EPA Administrator 
shall have the final authority to determine whether prior converted 
cropland has been abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that 
accumulate over extended periods of time in certain geographic regions 
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the 
tide. The terms tidal waters and waters subject to the ebb and flow of 
the tide mean those waters that rise and fall in a predictable and 
measurable rhythm or cycle due to the gravitational pulls of the moon 
and sun. Tidal waters and waters subject to the ebb and flow of the 
tide end where the rise and fall of the water surface can no longer be 
practically measured in a predictable rhythm due to masking by 
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or 
similar naturally occurring surface water channel that contributes 
perennial or intermittent flow to a water identified in paragraph 
(o)(1)(i) of this section in a typical year either directly or 
indirectly through a water(s) identified in paragraphs (o)(1)(i) 
through (vi) of this section or through water features identified in 
paragraph (o)(3) of this section so long as those water features convey 
perennial or intermittent flow downstream. A tributary does not lose 
its status as a tributary if it flows through a culvert, dam, or other 
similar artificial break or through a debris pile, boulder field, or 
similar natural break so long as the artificial or natural break 
conveys perennial or intermittent flow to a tributary or other 
jurisdictional water at the downstream end of the break. The alteration 
or relocation of a tributary does not modify its status as a tributary 
as long as it continues to satisfy the elements of this definition.
    (xii) Typical year. The term typical year means within the normal 
range of precipitation over a rolling thirty-year period for a 
particular geographic area.
    (xiii) Upland. The term upland means any land area that under 
normal circumstances does not satisfy all three wetland delineation 
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils) 
identified in paragraph (o)(3)(xv) of this section, and does not lie 
below the ordinary high water mark or the high tide line of a water 
identified in paragraph (o)(1)(i) through (vi) of this section. Waters 
identified in paragraphs (o)(1)(i) through (vi) of this section are not 
upland.
    (xiv) Waste treatment system. The term waste treatment system 
includes all components, including lagoons and treatment ponds (such as 
settling or cooling ponds), designed to convey or retain, concentrate, 
settle, reduce, or remove pollutants, either actively or passively, 
from wastewater prior to discharge (or eliminating any such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, 
a prevalence of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include swamps, marshes, bogs, and 
similar areas.

PART 232--404 PROGRAMS DEFINITIONS; EXEMPT ACTIVITIES NOT REQUIRING 
404 PERMITS

0
15. The authority citation for part 232 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.

0
16. Section 232.2 is amended by revising the definition of ``Waters of 
the United States'' to read as follows:


Sec.  232.2  Definitions.

* * * * *
    Waters of the United States means:
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and 
its implementing regulations, subject to the exclusions in paragraph 
(2) of this definition, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
the territorial seas and waters which are subject to the ebb and flow 
of the tide;
    (ii) Tributaries of waters identified in paragraph (1)(i) of this 
definition;
    (iii) Ditches that satisfy any of the conditions identified in 
paragraph (1)(i) of this definition, ditches constructed in a tributary 
or that relocate or alter a tributary as long as those ditches also 
satisfy the conditions of the tributary definition, and ditches 
constructed in an adjacent wetland as long as those ditches also 
satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified 
in paragraph (1)(i) of this definition, lakes and ponds that contribute 
perennial or intermittent flow to a water identified in paragraph 
(1)(i) of this definition in a typical year either directly or 
indirectly through a water(s) identified in paragraphs (1)(ii) through 
(vi) of this definition or through water features identified in 
paragraph (2) of this definition so long as those water features convey 
perennial or intermittent flow downstream, and lakes and ponds that are 
flooded by a water identified in paragraphs (1)(i) through (v) of this 
definition in a typical year;
    (v) Impoundments of waters identified in paragraphs (1)(i) through 
(iv) and (vi) of this definition; and
    (vi) Adjacent wetlands to waters identified in paragraphs (1)(i) 
through (v) of this definition.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs 
(1)(i) through (vi) of this definition;
    (ii) Groundwater, including groundwater drained through subsurface 
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including 
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (1)(iii) of this 
definition;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for 
rice or cranberry growing, that would revert to upland should 
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including 
water storage reservoirs, farm and stock watering ponds, and log 
cleaning ponds) which are not identified in paragraph (1)(iv) or (v) of 
this definition;
    (viii) Water-filled depressions created in upland incidental to 
mining or construction activity, and pits excavated in upland for the 
purpose of obtaining fill, sand, or gravel;
    (ix) Stormwater control features excavated or constructed in upland 
to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as 
detention, retention and infiltration basins and ponds, and groundwater 
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this definition, the following terms apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands 
that abut or have a direct hydrologic surface connection to a water 
identified in paragraphs (1)(i) through (v) of this definition in a 
typical year. Abut means to touch at least at one point or side of a 
water identified in paragraphs (1)(i) through (v) of this definition. A 
direct hydrologic surface connection occurs as

[[Page 4214]]

a result of inundation from a paragraph (1)(i) through (v) water to a 
wetland or via perennial or intermittent flow between a wetland and a 
paragraph (1)(i) through (v) water. Wetlands physically separated from 
a paragraph (1)(i) through (v) water by upland or by dikes, barriers, 
or similar structures and also lacking a direct hydrologic surface 
connection to such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to 
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or 
pooling only in direct response to precipitation (e.g., rain or snow 
fall).
    (iv) High tide line. The term high tide line means the line of 
intersection of the land with the water's surface at the maximum height 
reached by a rising tide. The high tide line may be determined, in the 
absence of actual data, by a line of oil or scum along shore objects, a 
more or less continuous deposit of fine shell or debris on the 
foreshore or berm, other physical markings or characteristics, 
vegetation lines, tidal gages, or other suitable means that delineate 
the general height reached by a rising tide. The line encompasses 
spring high tides and other high tides that occur with periodic 
frequency but does not include storm surges in which there is a 
departure from the normal or predicted reach of the tide due to the 
piling up of water against a coast by strong winds, such as those 
accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water flowing 
continuously during certain times of a typical year and more than in 
direct response to precipitation (e.g., seasonally when the groundwater 
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark 
means that line on the shore established by the fluctuations of water 
and indicated by physical characteristics such as clear, natural line 
impressed on the bank, shelving, changes in the character of soil, 
destruction of terrestrial vegetation, the presence of litter and 
debris, or other appropriate means that consider the characteristics of 
the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing 
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland 
means any area that, prior to December 23, 1985, was drained or 
otherwise manipulated for the purpose, or having the effect, of making 
production of an agricultural product possible. EPA and the Corps will 
recognize designations of prior converted cropland made by the 
Secretary of Agriculture. An area is no longer considered prior 
converted cropland for purposes of the Clean Water Act when the area is 
abandoned and has reverted to wetland, as defined in paragraph (3)(xv) 
of this definition. Abandonment occurs when prior converted cropland is 
not used for, or in support of, agricultural purposes at least once in 
the immediately preceding five years. For the purposes of the Clean 
Water Act, the EPA Administrator shall have the final authority to 
determine whether prior converted cropland has been abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that 
accumulate over extended periods of time in certain geographic regions 
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the 
tide. The terms tidal waters and waters subject to the ebb and flow of 
the tide mean those waters that rise and fall in a predictable and 
measurable rhythm or cycle due to the gravitational pulls of the moon 
and sun. Tidal waters and waters subject to the ebb and flow of the 
tide end where the rise and fall of the water surface can no longer be 
practically measured in a predictable rhythm due to masking by 
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or 
similar naturally occurring surface water channel that contributes 
perennial or intermittent flow to a water identified in paragraph 
(1)(i) of this section in a typical year either directly or indirectly 
through a water(s) identified in paragraphs (1)(ii) through (vi) of 
this section or through water features identified in paragraph (b) of 
this section so long as those water features convey perennial or 
intermittent flow downstream. A tributary does not lose its status as a 
tributary if it flows through a culvert, dam, or other similar 
artificial break or through a debris pile, boulder field, or similar 
natural break so long as the artificial or natural break conveys 
perennial or intermittent flow to a tributary or other jurisdictional 
water at the downstream end of the break. The alteration or relocation 
of a tributary does not modify its status as a tributary as long as it 
continues to satisfy the elements of this definition.
    (xii) Typical year. The term typical year means within the normal 
range of precipitation over a rolling thirty-year period for a 
particular geographic area.
    (xiii) Upland. The term upland means any land area that under 
normal circumstances does not satisfy all three wetland delineation 
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils) 
identified in paragraph (3)(xv) of this definition, and does not lie 
below the ordinary high water mark or the high tide line of a water 
identified in paragraph (1)(i) through (vi) of this definition. Waters 
identified in paragraphs (1)(i) through (vi) of this definition are not 
upland.
    (xvi) Waste treatment system. The term waste treatment system 
includes all components, including lagoons and treatment ponds (such as 
settling or cooling ponds), designed to convey or retain, concentrate, 
settle, reduce, or remove pollutants, either actively or passively, 
from wastewater prior to discharge (or eliminating any such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, 
a prevalence of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include swamps, marshes, bogs, and 
similar areas.

PART 300--NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION 
CONTINGENCY PLAN

0
17. The authority citation for part 300 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.

0
18. Section 300.5 is amended by revising the definition of ``Navigable 
waters'' to read as follows:


Sec.  300.5  Definitions.

* * * * *
    Navigable waters means the waters of the United States, including 
the territorial seas.
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and 
its implementing regulations, subject to the exclusions in paragraph 
(2) of this definition, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
the territorial seas and waters which are subject to the ebb and flow 
of the tide;
    (ii) Tributaries of waters identified in paragraph (1)(i) of this 
definition;
    (iii) Ditches that satisfy any of the conditions identified in 
paragraph (1)(i) of this definition, ditches constructed in a tributary 
or that relocate or alter a tributary as long as those ditches also 
satisfy the conditions of the tributary definition, and ditches 
constructed in

[[Page 4215]]

an adjacent wetland as long as those ditches also satisfy the 
conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified 
in paragraph (1)(i) of this definition, lakes and ponds that contribute 
perennial or intermittent flow to a water identified in paragraph 
(1)(i) of this definition in a typical year either directly or 
indirectly through a water(s) identified in paragraphs (1)(ii) through 
(vi) of this definition or through water features identified in 
paragraph (2) of this section so long as those water features convey 
perennial or intermittent flow downstream, and lakes and ponds that are 
flooded by a water identified in paragraphs (1)(i) through (v) of this 
definition in a typical year;
    (v) Impoundments of waters identified in paragraphs (1)(i) through 
(iv) and (vi) of this definition; and
    (vi) Adjacent wetlands to waters identified in paragraphs (1)(i) 
through (v) of this definition.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs 
(1)(i) through (vi) of this definition;
    (ii) Groundwater, including groundwater drained through subsurface 
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including 
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (1)(iii) of this 
definition;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for 
rice or cranberry growing, that would revert to upland should 
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including 
water storage reservoirs, farm and stock watering ponds, and log 
cleaning ponds) which are not identified in paragraph (1)(iv) or (v) of 
this definition;
    (viii) Water-filled depressions created in upland incidental to 
mining or construction activity, and pits excavated in upland for the 
purpose of obtaining fill, sand, or gravel;
    (ix) Stormwater control features excavated or constructed in upland 
to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as 
detention, retention and infiltration basins and ponds, and groundwater 
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this definition, the following definitions apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands 
that abut or have a direct hydrologic surface connection to a water 
identified in paragraphs (1)(i) through (v) of this definition in a 
typical year. Abut means to touch at least at one point or side of a 
water identified in paragraphs (1)(i) through (v) of this definition. A 
direct hydrologic surface connection occurs as a result of inundation 
from a paragraph (1)(i) through (v) water to a wetland or via perennial 
or intermittent flow between a wetland and a paragraph (1)(i) through 
(v) water. Wetlands physically separated from a paragraph (1)(i) 
through (v) water by upland or by dikes, barriers, or similar 
structures and also lacking a direct hydrologic surface connection to 
such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to 
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or 
pooling only in direct response to precipitation (e.g., rain or snow 
fall).
    (iv) High tide line. The term high tide line means the line of 
intersection of the land with the water's surface at the maximum height 
reached by a rising tide. The high tide line may be determined, in the 
absence of actual data, by a line of oil or scum along shore objects, a 
more or less continuous deposit of fine shell or debris on the 
foreshore or berm, other physical markings or characteristics, 
vegetation lines, tidal gages, or other suitable means that delineate 
the general height reached by a rising tide. The line encompasses 
spring high tides and other high tides that occur with periodic 
frequency but does not include storm surges in which there is a 
departure from the normal or predicted reach of the tide due to the 
piling up of water against a coast by strong winds, such as those 
accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water flowing 
continuously during certain times of a typical year and more than in 
direct response to precipitation (e.g., seasonally when the groundwater 
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark 
means that line on the shore established by the fluctuations of water 
and indicated by physical characteristics such as clear, natural line 
impressed on the bank, shelving, changes in the character of soil, 
destruction of terrestrial vegetation, the presence of litter and 
debris, or other appropriate means that consider the characteristics of 
the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing 
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland 
means any area that, prior to December 23, 1985, was drained or 
otherwise manipulated for the purpose, or having the effect, of making 
production of an agricultural product possible. EPA and the Corps will 
recognize designations of prior converted cropland made by the 
Secretary of Agriculture. An area is no longer considered prior 
converted cropland for purposes of the Clean Water Act when the area is 
abandoned and has reverted to wetland, as defined in paragraph (3)(xv) 
of this definition. Abandonment occurs when prior converted cropland is 
not used for, or in support of, agricultural purposes at least once in 
the immediately preceding five years. For the purposes of the Clean 
Water Act, the EPA Administrator shall have the final authority to 
determine whether prior converted cropland has been abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that 
accumulate over extended periods of time in certain geographic regions 
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the 
tide. The terms tidal waters and waters subject to the ebb and flow of 
the tide mean those waters that rise and fall in a predictable and 
measurable rhythm or cycle due to the gravitational pulls of the moon 
and sun. Tidal waters and waters subject to the ebb and flow of the 
tide end where the rise and fall of the water surface can no longer be 
practically measured in a predictable rhythm due to masking by 
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or 
similar naturally occurring surface water channel that contributes 
perennial or intermittent flow to a water identified in paragraph 
(1)(i) of this definition in a typical year either directly or 
indirectly through a water(s) identified in paragraphs (1)(ii) through 
(vi) of this definition or through water features identified in 
paragraph (2) of this definition so long as those water features convey 
perennial or intermittent flow downstream. A tributary does not lose 
its status as a tributary if it flows through a culvert, dam, or other 
similar artificial break or through a debris pile, boulder field, or 
similar natural break so long as the artificial or natural break 
conveys perennial or intermittent flow to a tributary or other 
jurisdictional water at the downstream end of the break. The alteration 
or relocation of a tributary

[[Page 4216]]

does not modify its status as a tributary as long as it continues to 
satisfy the elements of this definition.
    (xii) Typical year. The term typical year means within the normal 
range of precipitation over a rolling thirty-year period for a 
particular geographic area.
    (xiii) Upland. The term upland means any land area that under 
normal circumstances does not satisfy all three wetland delineation 
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils) 
identified in paragraph (3)(xv) of this definition, and does not lie 
below the ordinary high water mark or the high tide line of a water 
identified in paragraph (1)(i) through (vi) of this definition. Waters 
identified in paragraphs (1)(i) through (vi) of this definition are not 
upland.
    (xiv) Waste treatment system. The term waste treatment system 
includes all components, including lagoons and treatment ponds (such as 
settling or cooling ponds), designed to convey or retain, concentrate, 
settle, reduce, or remove pollutants, either actively or passively, 
from wastewater prior to discharge (or eliminating any such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, 
a prevalence of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include swamps, marshes, bogs, and 
similar areas.
* * * * *
0
19. In appendix E to part 300, section 1.5 Definitions is amended by 
revising the definition of ``Navigable waters'' to read as follows:

Appendix E to Part 300--Oil Spill Response

* * * * *
1.5 Definitions. * * *
    Navigable waters means the waters of the United States, 
including the territorial seas.
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. 
and its implementing regulations, subject to the exclusions in 
paragraph (2) of this definition, the term ``waters of the United 
States'' means:
    (i) Waters which are currently used, or were used in the past, 
or may be susceptible to use in interstate or foreign commerce, 
including the territorial seas and waters which are subject to the 
ebb and flow of the tide;
    (ii) Tributaries of waters identified in paragraph (1)(i) of 
this definition;
    (iii) Ditches that satisfy any of the conditions identified in 
paragraph (1)(i) of this definition, ditches constructed in a 
tributary or that relocate or alter a tributary as long as those 
ditches also satisfy the conditions of the tributary definition, and 
ditches constructed in an adjacent wetland as long as those ditches 
also satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions 
identified in paragraph (1)(i) of this definition, lakes and ponds 
that contribute perennial or intermittent flow to a water identified 
in paragraph (1)(i) of this section in a typical year either 
directly or indirectly through a water(s) identified in paragraphs 
(1)(ii) through (vi) of this definition or through water features 
identified in paragraph (2) of this definition so long as those 
water features convey perennial or intermittent flow downstream, and 
lakes and ponds that are flooded by a water identified in paragraphs 
(1)(i) through (v) of this definition in a typical year;
    (v) Impoundments of waters identified in paragraphs (1)(i) 
through (iv) and (vi) of this definition; and
    (vi) Adjacent wetlands to waters identified in paragraphs (1)(i) 
through (v) of this section.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in 
paragraphs (1)(i) through (vi) of this definition;
    (ii) Groundwater, including groundwater drained through 
subsurface drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, 
including directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (1)(iii) of 
this definition;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for 
rice or cranberry growing, that would revert to upland should 
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland 
(including water storage reservoirs, farm and stock watering ponds, 
and log cleaning ponds) which are not identified in paragraph 
(1)(iv) or (v) of this definition;
    (viii) Water-filled depressions created in upland incidental to 
mining or construction activity, and pits excavated in upland for 
the purpose of obtaining fill, sand, or gravel;
    (xi) Stormwater control features excavated or constructed in 
upland to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such 
as detention, retention and infiltration basins and ponds, and 
groundwater recharge basins; and
    (xi) Waste treatment systems.
    (3) In this definition, the following terms apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands 
that abut or have a direct hydrologic surface connection to a water 
identified in paragraphs (1)(i) through (v) of this definition in a 
typical year. Abut means to touch at least at one point or side of a 
water identified in paragraphs (1)(i) through (v) of this 
definition. A direct hydrologic surface connection occurs as a 
result of inundation from a paragraph (1)(i) through (v) water to a 
wetland or via perennial or intermittent flow between a wetland and 
a paragraph (1)(i) through (v) water. Wetlands physically separated 
from a paragraph (1)(i) through (v) water by upland or by dikes, 
barriers, or similar structures and also lacking a direct hydrologic 
surface connection to such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to 
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing 
or pooling only in direct response to precipitation (e.g., rain or 
snow fall).
    (iv) High tide line. The term high tide line means the line of 
intersection of the land with the water's surface at the maximum 
height reached by a rising tide. The high tide line may be 
determined, in the absence of actual data, by a line of oil or scum 
along shore objects, a more or less continuous deposit of fine shell 
or debris on the foreshore or berm, other physical markings or 
characteristics, vegetation lines, tidal gages, or other suitable 
means that delineate the general height reached by a rising tide. 
The line encompasses spring high tides and other high tides that 
occur with periodic frequency but does not include storm surges in 
which there is a departure from the normal or predicted reach of the 
tide due to the piling up of water against a coast by strong winds, 
such as those accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water 
flowing continuously during certain times of a typical year and more 
than in direct response to precipitation (e.g., seasonally when the 
groundwater table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark 
means that line on the shore established by the fluctuations of 
water and indicated by physical characteristics such as clear, 
natural line impressed on the bank, shelving, changes in the 
character of soil, destruction of terrestrial vegetation, the 
presence of litter and debris, or other appropriate means that 
consider the characteristics of the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing 
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted 
cropland means any area that, prior to December 23, 1985, was 
drained or otherwise manipulated for the purpose, or having the 
effect, of making production of an agricultural product possible. 
EPA and the Corps will recognize designations of prior converted 
cropland made by the Secretary of Agriculture. An area is no longer 
considered prior converted cropland for purposes of the Clean Water 
Act when the area is abandoned and has reverted to wetland, as 
defined in paragraph (3)(xv) of this definition. Abandonment occurs 
when prior converted cropland is not used for, or in support of, 
agricultural purposes at least once in the immediately preceding 
five years. For the purposes of the Clean Water Act, the EPA 
Administrator shall have the final authority to determine whether 
prior converted cropland has been abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that 
accumulate over extended periods of time in certain geographic 
regions and high altitudes (e.g., in northern climes and mountainous 
regions).
    (x) Tidal waters and waters subject to the ebb and flow of the 
tide. The terms tidal

[[Page 4217]]

waters and waters subject to the ebb and flow of the tide mean those 
waters that rise and fall in a predictable and measurable rhythm or 
cycle due to the gravitational pulls of the moon and sun. Tidal 
waters and waters subject to the ebb and flow of the tide end where 
the rise and fall of the water surface can no longer be practically 
measured in a predictable rhythm due to masking by hydrologic, wind, 
or other effects.
    (xi) Tributary. The term tributary means a river, stream, or 
similar naturally occurring surface water channel that contributes 
perennial or intermittent flow to a water identified in paragraph 
(1)(i) of this definition in a typical year either directly or 
indirectly through a water(s) identified in paragraphs (1)(ii) 
through (vi) of this definition or through water features identified 
in paragraph (2) of this definition so long as those water features 
convey perennial or intermittent flow downstream. A tributary does 
not lose its status as a tributary if it flows through a culvert, 
dam, or other similar artificial break or through a debris pile, 
boulder field, or similar natural break so long as the artificial or 
natural break conveys perennial or intermittent flow to a tributary 
or other jurisdictional water at the downstream end of the break. 
The alteration or relocation of a tributary does not modify its 
status as a tributary as long as it continues to satisfy the 
elements of this definition.
    (xii) Typical year. The term typical year means within the 
normal range of precipitation over a rolling thirty-year period for 
a particular geographic area.
    (xiii) Upland. The term upland means any land area that under 
normal circumstances does not satisfy all three wetland delineation 
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils) 
identified in paragraph (3)(xv) of this definition, and does not lie 
below the ordinary high water mark or the high tide line of a water 
identified in paragraph (1)(i) through (vi) of this definition. 
Waters identified in paragraphs (1)(i) through (vi) of this 
definition are not upland.
    (xiv) Waste treatment system. The term waste treatment system 
includes all components, including lagoons and treatment ponds (such 
as settling or cooling ponds), designed to convey or retain, 
concentrate, settle, reduce, or remove pollutants, either actively 
or passively, from wastewater prior to discharge (or eliminating any 
such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated 
or saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do 
support, a prevalence of vegetation typically adapted for life in 
saturated soil conditions. Wetlands generally include swamps, 
marshes, bogs, and similar areas.
* * * * *

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

0
20. The authority citation for part 302 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq.

0
21. Section 302.3 is amended by revising the definition of ``Navigable 
waters'' to read as follows:


Sec.  302.3  Definitions.

* * * * *
    Navigable waters means the waters of the United States, including 
the territorial seas.
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and 
its implementing regulations, subject to the exclusions in paragraph 
(2) of this definition, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
the territorial seas and waters which are subject to the ebb and flow 
of the tide;
    (ii) Tributaries of waters identified in paragraph (1)(i) of this 
definition;
    (iii) Ditches that satisfy any of the conditions identified in 
paragraph (1)(i) of this definition, ditches constructed in a tributary 
or that relocate or alter a tributary as long as those ditches also 
satisfy the conditions of the tributary definition, and ditches 
constructed in an adjacent wetland as long as those ditches also 
satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified 
in paragraph (1)(i) of this definition, lakes and ponds that contribute 
perennial or intermittent flow to a water identified in paragraph 
(1)(i) of this definition in a typical year either directly or 
indirectly through a water(s) identified in paragraphs (1)(ii) through 
(vi) of this definition or through water features identified in 
paragraph (2) of this definition so long as those water features convey 
perennial or intermittent flow downstream, and lakes and ponds that are 
flooded by a water identified in paragraphs (1)(i) through (v) of this 
definition in a typical year;
    (v) Impoundments of waters identified in paragraphs (1)(i) through 
(iv) and (vi) of this definition; and
    (vi) Adjacent wetlands to waters identified in paragraphs (1)(i) 
through (v) of this definition.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs 
(1)(i) through (vi) of this definition;
    (ii) Groundwater, including groundwater drained through subsurface 
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including 
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (1)(iii) of this 
definition;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for 
rice or cranberry growing, that would revert to upland should 
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including 
water storage reservoirs, farm and stock watering ponds, and log 
cleaning ponds) which are not identified in paragraph (1)(iv) or (v) of 
this definition;
    (viii) Water-filled depressions created in upland incidental to 
mining or construction activity, and pits excavated in upland for the 
purpose of obtaining fill, sand, or gravel;
    (xi) Stormwater control features excavated or constructed in upland 
to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as 
detention, retention and infiltration basins and ponds, and groundwater 
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this definition, the following terms apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands 
that abut or have a direct hydrologic surface connection to a water 
identified in paragraphs (1)(i) through (v) of this definition in a 
typical year. Abut means to touch at least at one point or side of a 
water identified in paragraphs (1)(i) through (v) of this definition. A 
direct hydrologic surface connection occurs as a result of inundation 
from a paragraph (1)(i) through (v) water to a wetland or via perennial 
or intermittent flow between a wetland and a paragraph (1)(i) through 
(v) water. Wetlands physically separated from a paragraph (1)(i) 
through (v) water by upland or by dikes, barriers, or similar 
structures and also lacking a direct hydrologic surface connection to 
such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to 
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or 
pooling only in direct response to precipitation (e.g., rain or snow 
fall).
    (iv) High tide line. The term high tide line means the line of 
intersection of the land with the water's surface at the maximum height 
reached by a rising tide. The high tide line may be determined, in the 
absence of actual data, by a line of oil or scum along shore objects, a 
more or less continuous deposit of fine shell or debris on the 
foreshore or berm, other physical markings or characteristics, 
vegetation lines, tidal gages, or other suitable means that delineate 
the general height reached by a rising tide. The line

[[Page 4218]]

encompasses spring high tides and other high tides that occur with 
periodic frequency but does not include storm surges in which there is 
a departure from the normal or predicted reach of the tide due to the 
piling up of water against a coast by strong winds, such as those 
accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water flowing 
continuously during certain times of a typical year and more than in 
direct response to precipitation (e.g., seasonally when the groundwater 
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark 
means that line on the shore established by the fluctuations of water 
and indicated by physical characteristics such as clear, natural line 
impressed on the bank, shelving, changes in the character of soil, 
destruction of terrestrial vegetation, the presence of litter and 
debris, or other appropriate means that consider the characteristics of 
the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing 
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland 
means any area that, prior to December 23, 1985, was drained or 
otherwise manipulated for the purpose, or having the effect, of making 
production of an agricultural product possible. EPA and the Corps will 
recognize designations of prior converted cropland made by the 
Secretary of Agriculture. An area is no longer considered prior 
converted cropland for purposes of the Clean Water Act when the area is 
abandoned and has reverted to wetland, as defined in paragraph (3)(xv) 
of this section. Abandonment occurs when prior converted cropland is 
not used for, or in support of, agricultural purposes at least once in 
the immediately preceding five years. For the purposes of the Clean 
Water Act, the EPA Administrator shall have the final authority to 
determine whether prior converted cropland has been abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that 
accumulate over extended periods of time in certain geographic regions 
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the 
tide. The terms tidal waters and waters subject to the ebb and flow of 
the tide mean those waters that rise and fall in a predictable and 
measurable rhythm or cycle due to the gravitational pulls of the moon 
and sun. Tidal waters and waters subject to the ebb and flow of the 
tide end where the rise and fall of the water surface can no longer be 
practically measured in a predictable rhythm due to masking by 
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or 
similar naturally occurring surface water channel that contributes 
perennial or intermittent flow to a water identified in paragraph 
(1)(i) of this section in a typical year either directly or indirectly 
through a water(s) identified in paragraphs (1)(ii) through (vi) of 
this definition or through water features identified in paragraph (2) 
of this definition so long as those water features convey perennial or 
intermittent flow downstream. A tributary does not lose its status as a 
tributary if it flows through a culvert, dam, or other similar 
artificial break or through a debris pile, boulder field, or similar 
natural break so long as the artificial or natural break conveys 
perennial or intermittent flow to a tributary or other jurisdictional 
water at the downstream end of the break. The alteration or relocation 
of a tributary does not modify its status as a tributary as long as it 
continues to satisfy the elements of this definition.
    (xii) Typical year. The term typical year means within the normal 
range of precipitation over a rolling thirty-year period for a 
particular geographic area.
    (xiii) Upland. The term upland means any land area that under 
normal circumstances does not satisfy all three wetland delineation 
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils) 
identified in paragraph (3)(xv) of this section, and does not lie below 
the ordinary high water mark or the high tide line of a water 
identified in paragraph (1)(i) through (vi) of this definition. Waters 
identified in paragraphs (1)(i) through (vi) of this definition are not 
upland.
    (xiv) Waste treatment system. The term waste treatment system 
includes all components, including lagoons and treatment ponds (such as 
settling or cooling ponds), designed to convey or retain, concentrate, 
settle, reduce, or remove pollutants, either actively or passively, 
from wastewater prior to discharge (or eliminating any such discharge).
    (xv) Wetlands. The term wetlands means areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, 
a prevalence of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include swamps, marshes, bogs, and 
similar areas.
* * * * *

PART 401--GENERAL PROVISIONS

0
22. The authority citation for part 401 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq.

0
23. Section 401.11 is amended by revising paragraph (l) to read as 
follows:


Sec.  401.11  General definitions.

* * * * *
    (l) Navigable waters means ``waters of the United States, including 
the territorial seas.''
    (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and 
its implementing regulations, subject to the exclusions in paragraph 
(l)(2) of this section, the term ``waters of the United States'' means:
    (i) Waters which are currently used, or were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
the territorial seas and waters which are subject to the ebb and flow 
of the tide;
    (ii) Tributaries of waters identified in paragraph (l)(1)(i) of 
this section;
    (iii) Ditches that satisfy any of the conditions identified in 
paragraph (l)(1)(i) of this section, ditches constructed in a tributary 
or that relocate or alter a tributary as long as those ditches also 
satisfy the conditions of the tributary definition, and ditches 
constructed in an adjacent wetland as long as those ditches also 
satisfy the conditions of the tributary definition;
    (iv) Lakes and ponds that satisfy any of the conditions identified 
in paragraph (l)(1)(i) of this section, lakes and ponds that contribute 
perennial or intermittent flow to a water identified in paragraph 
(l)(1)(i) of this section in a typical year either directly or 
indirectly through a water(s) identified in paragraphs (l)(1)(ii) 
through (vi) of this section or through water features identified in 
paragraph (l)(2) of this section so long as those water features convey 
perennial or intermittent flow downstream, and lakes and ponds that are 
flooded by a water identified in paragraphs (l)(1)(i) through (v) of 
this section in a typical year;
    (v) Impoundments of waters identified in paragraphs (l)(1)(i) 
through (iv) and (vi) of this section; and
    (vi) Adjacent wetlands to waters identified in paragraphs (l)(1)(i) 
through (v) of this section.
    (2) The following are not ``waters of the United States'':
    (i) Waters or water features that are not identified in paragraphs 
(l)(1)(i) through (vi) of this section;

[[Page 4219]]

    (ii) Groundwater, including groundwater drained through subsurface 
drainage systems;
    (iii) Ephemeral features and diffuse stormwater run-off, including 
directional sheet flow over upland;
    (iv) Ditches that are not identified in paragraph (l)(1)(iii) of 
this section;
    (v) Prior converted cropland;
    (vi) Artificially irrigated areas, including fields flooded for 
rice or cranberry growing, that would revert to upland should 
application of irrigation water to that area cease;
    (vii) Artificial lakes and ponds constructed in upland (including 
water storage reservoirs, farm and stock watering ponds, and log 
cleaning ponds) which are not identified in paragraph (l)(1)(iv) or (v) 
of this section;
    (viii) Water-filled depressions created in upland incidental to 
mining or construction activity, and pits excavated in upland for the 
purpose of obtaining fill, sand, or gravel;
    (ix) Stormwater control features excavated or constructed in upland 
to convey, treat, infiltrate or store stormwater run-off;
    (x) Wastewater recycling structures constructed in upland, such as 
detention, retention and infiltration basins and ponds, and groundwater 
recharge basins; and
    (xi) Waste treatment systems.
    (3) In this paragraph (l), the following definitions apply:
    (i) Adjacent wetlands. The term adjacent wetlands means wetlands 
that abut or have a direct hydrologic surface connection to a water 
identified in paragraphs (l)(1)(i) through (v) of this section in a 
typical year. Abut means to touch at least at one point or side of a 
water identified in paragraphs (l)(1)(i) through (v) of this section. A 
direct hydrologic surface connection occurs as a result of inundation 
from a paragraph (l)(1)(i) through (v) water to a wetland or via 
perennial or intermittent flow between a wetland and a paragraph 
(l)(1)(i) through (v) water. Wetlands physically separated from a 
paragraph (l)(1)(i) through (v) water by upland or by dikes, barriers, 
or similar structures and also lacking a direct hydrologic surface 
connection to such waters are not adjacent.
    (ii) Ditch. The term ditch means an artificial channel used to 
convey water.
    (iii) Ephemeral. The term ephemeral means surface water flowing or 
pooling only in direct response to precipitation (e.g., rain or snow 
fall).
    (iv) High tide line. The term high tide line means the line of 
intersection of the land with the water's surface at the maximum height 
reached by a rising tide. The high tide line may be determined, in the 
absence of actual data, by a line of oil or scum along shore objects, a 
more or less continuous deposit of fine shell or debris on the 
foreshore or berm, other physical markings or characteristics, 
vegetation lines, tidal gages, or other suitable means that delineate 
the general height reached by a rising tide. The line encompasses 
spring high tides and other high tides that occur with periodic 
frequency but does not include storm surges in which there is a 
departure from the normal or predicted reach of the tide due to the 
piling up of water against a coast by strong winds, such as those 
accompanying a hurricane or other intense storm.
    (v) Intermittent. The term intermittent means surface water flowing 
continuously during certain times of a typical year and more than in 
direct response to precipitation (e.g., seasonally when the groundwater 
table is elevated or when snowpack melts).
    (vi) Ordinary high water mark. The term ordinary high water mark 
means that line on the shore established by the fluctuations of water 
and indicated by physical characteristics such as clear, natural line 
impressed on the bank, shelving, changes in the character of soil, 
destruction of terrestrial vegetation, the presence of litter and 
debris, or other appropriate means that consider the characteristics of 
the surrounding areas.
    (vii) Perennial. The term perennial means surface water flowing 
continuously year-round during a typical year.
    (viii) Prior converted cropland. The term prior converted cropland 
means any area that, prior to December 23, 1985, was drained or 
otherwise manipulated for the purpose, or having the effect, of making 
production of an agricultural product possible. EPA and the Corps will 
recognize designations of prior converted cropland made by the 
Secretary of Agriculture. An area is no longer considered prior 
converted cropland for purposes of the Clean Water Act when the area is 
abandoned and has reverted to wetland, as defined in paragraph 
(l)(3)(xv) of this section. Abandonment occurs when prior converted 
cropland is not used for, or in support of, agricultural purposes at 
least once in the immediately preceding five years. For the purposes of 
the Clean Water Act, the EPA Administrator shall have the final 
authority to determine whether prior converted cropland has been 
abandoned.
    (ix) Snowpack. The term snowpack means layers of snow that 
accumulate over extended periods of time in certain geographic regions 
and high altitudes (e.g., in northern climes and mountainous regions).
    (x) Tidal waters and waters subject to the ebb and flow of the 
tide. The terms tidal waters and waters subject to the ebb and flow of 
the tide mean those waters that rise and fall in a predictable and 
measurable rhythm or cycle due to the gravitational pulls of the moon 
and sun. Tidal waters and waters subject to the ebb and flow of the 
tide end where the rise and fall of the water surface can no longer be 
practically measured in a predictable rhythm due to masking by 
hydrologic, wind, or other effects.
    (xi) Tributary. The term tributary means a river, stream, or 
similar naturally occurring surface water channel that contributes 
perennial or intermittent flow to a water identified in paragraph 
(l)(1)(i) of this section in a typical year either directly or 
indirectly through a water(s) identified in paragraphs (l)(1)(ii) 
through (vi) of this section or through water features identified in 
paragraph (l)(2) of this section so long as those water features convey 
perennial or intermittent flow downstream. A tributary does not lose 
its status as a tributary if it flows through a culvert, dam, or other 
similar artificial break or through a debris pile, boulder field, or 
similar natural break so long as the artificial or natural break 
conveys perennial or intermittent flow to a tributary or other 
jurisdictional water at the downstream end of the break. The alteration 
or relocation of a tributary does not modify its status as a tributary 
as long as it continues to satisfy the elements of this definition.
    (xii) Typical year. The term typical year means within the normal 
range of precipitation over a rolling thirty-year period for a 
particular geographic area.
    (xiii) Upland. The term upland means any land area that under 
normal circumstances does not satisfy all three wetland delineation 
criteria (i.e., hydrology, hydrophytic vegetation, hydric soils) 
identified in paragraph (l)(3)(xv) of this section, and does not lie 
below the ordinary high water mark or the high tide line of a water 
identified in paragraph (l)(1)(i) through (vi) of this section. Waters 
identified in paragraphs (l)(1)(i) through (vi) of this section are not 
upland.
    (xiv) Waste treatment system. The term waste treatment system 
includes all components, including lagoons and treatment ponds (such as 
settling or cooling ponds), designed to convey or retain, concentrate, 
settle, reduce, or remove pollutants, either actively or passively, 
from wastewater prior to discharge (or eliminating any such discharge).

[[Page 4220]]

    (xv) Wetlands. The term wetlands means areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, 
a prevalence of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include swamps, marshes, bogs, and 
similar areas.
* * * * *
[FR Doc. 2019-00791 Filed 2-13-19; 8:45 am]
 BILLING CODE 6560-50-P